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[ { "docid": "22904901", "title": "", "text": "computer. However, unlike in Fantasy Sports, in this case, no reasonable juror could find that the accused infringer itself makes or uses the entire claimed apparatus. The anchor seat of the device does not contact bone until the surgeon implants it. Because Medtronic is not a direct infringer, we next consider whether Medtronic induces or contributes to infringement. Under § 271(b), “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C. § 271(b). “ ‘In order to succeed on a claim of inducement, the patentee must show, first that there has been direct infringement,’ and ‘second, that the alleged in-fringer knowingly induced infringement and possessed specific intent to encourage another’s infringement.’ ” MEMO Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1378 (Fed.Cir.2005) (quoting Minn. Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1304-05 (Fed.Cir.2002)). Under § 271(c), “[w]hoever offers to sell or sells within the United States ... a component of a patented machine, manufacture, combination or composition ... constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial nonin-fringing use, shall be liable as a contributory infringer.” 35 U.S.C. § 271(b). In order to succeed on a claim of contributory infringement, in addition to proving an act of direct infringement, plaintiff must show that defendant “knew that the combination for which its components were especially made was both patented and infringing” and that defendant’s components have “no substantial non-infringing uses.” Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (internal quotations omitted). As to the predicate act of direct infringement, we conclude that there is a genuine issue of material fact as to whether surgeons infringe by making the claimed apparatus. The only evidence that Cross Medical cites suggesting that the anchor seat contacts bone is the statement of Medtronic’s employee, Michael Sherman, during his January 29, 2004 deposition: Q. How far down do you screw the" } ]

[ { "docid": "22295517", "title": "", "text": "of direct infringement. Dynacore, 363 F.3d at 1272. Two such cases that have found that a party cannot be liable for direct infringement because the party did not perform all the steps are Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1568 (Fed.Cir.1983) (finding no direct infringement by manufacturer who performed the first step of a process claim even where its customer performed the other step of the claim) and Cross Medical Products, 424 F.3d at 1311 (rejecting patentees’ efforts to combine the acts of surgeons with those of a medical device manufacturer to find direct infringement of an apparatus claim). Courts faced with a divided infringement theory have also generally refused to find liability where one party did not control or direct each step of the patented process. See BMC Resources, Inc. v. Paymentech, L.P., 2006 WL 306289 (N.D.Tex. Feb. 9, 2006) (“No court has ever found direct infringement based on the type of arms-length business transaction presented here.”); Faroudja Labs. v. Dwin Elecs., Inc., 1999 WL 111788, 1999 U.S. Dist. LEXIS 22987 (N.D.Cal. Feb. 24, 1999); Mobil Oil Corp. v. Filtrol Corp., 501 F.2d 282, 291-92 (9th Cir.1974) (expressing doubt over the possibility of divided infringement liability). A party cannot avoid infringement, however, simply by contracting out steps of a patented process to another entity. In those cases, the party in control would be liable for direct infringement. It would be unfair indeed for the mastermind in such situations to escape liability. District courts in those cases have held a party liable for infringement. See Shields v. Halliburton Co., 493 F.Supp. 1376, 1389 (W.D.La.1980). This court acknowledges that the standard requiring control or direction for a finding of joint infringement may in some circumstances allow parties to enter into arms-length agreements to avoid infringement. Nonetheless, this concern does not outweigh concerns over expanding the rules governing direct infringement. For example, expanding the rules governing direct infringement to reach independent conduct of multiple actors would subvert the statutory scheme for indirect infringement. Direct infringement is a strict-liability offense, but it is limited to those who practice each and" }, { "docid": "22295518", "title": "", "text": "(N.D.Cal. Feb. 24, 1999); Mobil Oil Corp. v. Filtrol Corp., 501 F.2d 282, 291-92 (9th Cir.1974) (expressing doubt over the possibility of divided infringement liability). A party cannot avoid infringement, however, simply by contracting out steps of a patented process to another entity. In those cases, the party in control would be liable for direct infringement. It would be unfair indeed for the mastermind in such situations to escape liability. District courts in those cases have held a party liable for infringement. See Shields v. Halliburton Co., 493 F.Supp. 1376, 1389 (W.D.La.1980). This court acknowledges that the standard requiring control or direction for a finding of joint infringement may in some circumstances allow parties to enter into arms-length agreements to avoid infringement. Nonetheless, this concern does not outweigh concerns over expanding the rules governing direct infringement. For example, expanding the rules governing direct infringement to reach independent conduct of multiple actors would subvert the statutory scheme for indirect infringement. Direct infringement is a strict-liability offense, but it is limited to those who practice each and every element of the claimed invention. By contrast, indirect liability requires evidence of “specific intent” to induce infringement. Another form of indirect infringement, contributory infringement under § 271(c), also requires a mens rea (knowledge) and is limited to sales of components or materials without substantial noninfringing uses. Under BMC’s proposed approach, a patentee would rarely, if ever, need to bring a claim for indirect infringement. The concerns over a party avoiding infringement by arms-length cooperation can usually be offset by proper claim drafting. A patentee can usually structure a claim to capture infringement by a single party. See Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 255, 272-75 (2005). In this case, for example, BMC could have drafted its claims to focus on one entity. The steps of the claim might have featured references to a single party’s supplying or receiving each element of the claimed process. However, BMC chose instead to have four different parties perform different acts within one claim. BMC correctly notes the difficulty of proving infringement of this" }, { "docid": "23145599", "title": "", "text": "performed all of the steps itself (as in the McKesson case). The problem of divided infringement in induced infringement cases typically arises only with respect to method patents. When claims are directed to a product or apparatus, direct infringement is always present, because the entity that installs the final part and thereby completes the claimed invention is a direct infringer. But in the case of method patents, parties that jointly practice a patented invention can often arrange to share performance of the claimed steps between them. In fact, sometimes that is the natural way that a particular method will be practiced, as the eases before us today illustrate. Recent precedents of this court have interpreted section 271(b) to mean that unless the accused infringer directs or controls the actions of the party or parties that are performing the claimed steps, the patentee has no remedy, even though the patentee’s rights are plainly being violated by the actors’ joint conduct. We now conclude that this interpretation of section 271(b) is wrong as a matter of statutory construction, precedent, and sound patent policy. Much of the briefing in these cases has been directed to the question whether direct infringement can be found when no single entity performs all of the claimed steps of the patent. It is not necessary for us to resolve that issue today because we find that these cases and cases like them can be resolved through an application of the doctrine of induced infringement. In doing so, we reconsider and overrule the 2007 decision of this court in which we held that in order for a party to be liable for induced infringement, some other single entity must be liable for direct infringement. BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed.Cir.2007). To be clear, we hold that all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity. I The essential facts of the cases before us are as follows: Akamai Technologies, Inc.," }, { "docid": "23576189", "title": "", "text": "at the trial, but it is apparent that the jury was fully apprised of the nature of the accused activities, as reflected in the jury questions. The processes of litigation require appellate review on the premises of the jury trial, lest invited error dominate trial tactics. No objection was raised to the jury instructions. The distinction relied on by the panel majority, that the defendants were bailees, not sellers, does not negate the principles of infringement, whether viewed as joint infringement or contributory infringement. See, e.g., On Demand Machine Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1334 (Fed.Cir.2006) (approving instruction that “It is not necessary for the acts that constitute infringement to be performed by one person or entity”) Phar-maStem is correct that the issue to which this evidence applies relates to damages, not infringement, and points to the small amount of damages awarded for infringement of the '553 patent (damages for the '553 patent were not appealed by the defendants). It is irrelevant whether any steps of a method claim can be viewed as a “service;” infringement requires only that the steps be performed. As discussed in Dawson Chemical Co. v. Rohm and Haas Co., 448 U.S. 176, 188, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980), the purpose of the contributory infringement statute is “to protect patent rights from subversion by those who, without directly infringing the patent themselves, engage in acts designed to facilitate infringement by others,” a criterion that the jury could have found was met by the facts and relationships of this case. On the instructions to the jury, the verdict of liability for contributory or joint infringement of the '553 patent is supported by substantial evidence, and should be sustained. From the court’s departure from the procedures of appellate review of jury verdicts, and from the flawed law that is propounded, I must, respectfully, dissent. . § 271(c). Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination or composition, or a material or apparatus for use in practicing a" }, { "docid": "23576138", "title": "", "text": "Pat- eniees, 23 Santa Clara Computer & High Tech L.J. 211 (2006). That issue is squarely presented in a case now pending before this court, BMC Resources, Inc. v. Paymentech, L.P., No.2006-1503. In this case, PharmaS-tem’s theory of liability was that the defendants were liable under section 271(c) for contributory infringement, not under section 271(a) for direct infringement, and PharmaS-tem has continued to press that theory on appeal. We therefore are not presented with the question whether the defendants could have been held liable under section 271(a) under a theory of joint direct infringement through their activities in conjunction with the transplanters. NEWMAN, Circuit Judge, dissenting. I respectfully dissent. After a three week trial the jury sustained the validity of these patents, the district court in a thorough opinion upheld the verdicts of validity, and validity was confirmed in three reexaminations by the Patent and Trademark Office. Today my colleagues on this panel hold that the inventions in the '681 patent and its continuation-in-part the '558 patent are obvious to them, and not infringed. The undisputed evidence at trial was that these long-sought life-saving inventions were achieved amid general scientific skepticism, despite the extensive research that was being conducted by many scientists in this field, as set forth in the patents in suit. The discoveries of these inventors were met with universal acclaim and widespread utilization, including the founding of many commercial enterprises, all of which are reported to have licensed the patents except for these defendants. Unimpressed by these considerations, my colleagues on this panel now reconstruct these inventions by selection and inference, with perfect hindsight of the discoveries. The evidence at trial was that this achievement eluded persons working in the field, despite speculation concerning its potential and recognition of its value if it could actually be achieved; despite the powerful interest in such a life-saving advance. Instead, my colleagues simply reweigh selectively extracted evidence, ignore the actual peer response and acclaim at the time these inventions were made, and decide that this long-sought advance would have been obvious to this court. Inventors Edward A. Boyse, Hal E." }, { "docid": "23145647", "title": "", "text": "collaborative performance are readily resolved by application of existing law. Issues of induced infringement are not new, but this aspect is ill served by the majority’s distortion of the inducement statute, 35 U.S.C. § 271(b), and has no support in theory or practice. This new rule simply imposes disruption, uncertainty, and disincentive upon the innovation communities. I respectfully dissent. Discussion This en banc court was convened in order to resolve inconsistencies in past panel rulings for situations in which different entities perform separate parts of a patented method. In the two earlier decisions whose rulings were the announced focus of this en banc review, BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed.Cir.2007) and Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed.Cir.2008), panels of this court held that when separate entities perform the steps of a patented method, there cannot be direct infringement unless a single mastermind directs or controls the performance of all of the steps. These decisions held that since there cannot be direct infringement without such direction or control, there cannot be indirect infringement by inducement or contributory infringement. Thus, the court held that there can be no liability for infringement, although all of the claim steps are performed. BMC Resources, 498 F.3d at 1379; Muniauction, 532 F.3d at 1329. This single-entity rule was applied by the district courts in the Akamai and McKesson decisions that are here on appeal, to deny all liability for infringement. We took these appeals en banc in order to resolve the conflicts within precedent. The en banc court has been unable to reach consensus. The dissenting opinion authored by Judge Linn adheres to the single-entity rule, and the majority opinion presents the new position that when more than one entity performs the steps of a patented invention, the only liable entity is the inducer, not those who directly infringe the claim. Such an inducement-only rule has never been held, in any case. It has no foundation in statute, or in two centuries of precedent. The en banc majority, embracing this new rule, does not acknowledge the new problems of" }, { "docid": "22295510", "title": "", "text": "claims for contributory infringement and inducement. At the request of the parties, the district court subsequently dismissed without prejudice Paymentech’s invalidity counterclaims. II This court reviews a summary judgment of no infringement without deference to ascertain whether genuine issues of material fact exist. Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1326 (Fed.Cir.2006); Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1331 (Fed.Cir.2006). The summary judgment evidence is assessed to determine whether “a reasonable jury could return a verdict for the non-movant.” Applied Med., 448 F.3d at 1331. In assessing the evidence, all reasonable inferences are drawn in favor of the non-mov-ant. Id. The case presents the issue of the proper standard for joint infringement by multiple parties of a single claim. As the parties agree, Paymentech does not perform every step of the method at issue in this case. With other parties performing some claimed method steps, this court must determine if Paymentech may nonetheless be liable for direct infringement under 35 U.S.C. § 271(a) (2000). Section 271(a) states: Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Direct infringement requires a party to perform or use each and every step or element of a claimed method or product. Warner-Jenkinson Co., Inc. v. Hilton Davis Corp., 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) (holding that the doctrine of equivalents, like literal in fringement, must be tested element by element); Canton Bio-Med., Inc. v. Integrated Liner Techs., Inc., 216 F.3d 1367, 1370 (Fed.Cir.2000); Gen. Foods Corp. v. Studiengesellschaft Kohle mbH, 972 F.2d 1272, 1274 (Fed.Cir.1992). For process patent or method patent claims, infringement occurs when a party performs all of the steps of the process. Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 773 (Fed.Cir.1993). When a defendant participates in or encourages infringement but does not directly infringe a patent, the normal recourse under the" }, { "docid": "22295509", "title": "", "text": "(Order). Finding no law on point from this court governing direct infringement by multiple parties performing different parts of the single claimed method, the district court reviewed opinions from other district courts. Based on that review, the trial court determined that Paymentech would only infringe if the record showed that it directed or controlled the behavior of the financial institutions that performed those claimed method steps that Paymentech did not perform. The district court determined that the record did not contain any such evidence of direction or control. In a surfeit of care, the district court went further to determine that even under the looser standard for joint infringement of a single claim advocated by BMC, the record would still need to contain “some connection” between Paymentech and the firms taking the additional claimed steps. Even under this relaxed rule, the trial court found no support for a finding of infringement by Paymentech. Thus, the district court granted Paymentech’s motion for summary judgment. Lacking any evidence of direct infringement, the district court further dismissed BMC’s claims for contributory infringement and inducement. At the request of the parties, the district court subsequently dismissed without prejudice Paymentech’s invalidity counterclaims. II This court reviews a summary judgment of no infringement without deference to ascertain whether genuine issues of material fact exist. Wilson Sporting Goods Co. v. Hillerich & Bradsby Co., 442 F.3d 1322, 1326 (Fed.Cir.2006); Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1331 (Fed.Cir.2006). The summary judgment evidence is assessed to determine whether “a reasonable jury could return a verdict for the non-movant.” Applied Med., 448 F.3d at 1331. In assessing the evidence, all reasonable inferences are drawn in favor of the non-mov-ant. Id. The case presents the issue of the proper standard for joint infringement by multiple parties of a single claim. As the parties agree, Paymentech does not perform every step of the method at issue in this case. With other parties performing some claimed method steps, this court must determine if Paymentech may nonetheless be liable for direct infringement under 35 U.S.C. § 271(a) (2000). Section" }, { "docid": "22295508", "title": "", "text": "method of claim 1 wherein said payment number is a debit card number. Paymentech denied infringement, arguing that it did not perform all of the steps of the patented method by itself or in coordination with its customers and financial institutions. The magistrate judge determined that Paymentech did not infringe the '298 patent or the '456 patent either by itself or in connection with other entities. Accordingly, the magistrate judge recommended that the district court grant Paymentech’s motion for summary judgment of non-infringement. BMC objected to that recommendation. Relying on this court’s decision in On Demand Machine Corp. v. Ingram Industries, Inc., 442 F.3d 1331 (Fed.Cir.2006), BMC argued that Paymentech had infringed. BMC argued that On Demand changed the law governing joint infringement by multiple parties. The district court determined that the language BMC had relied upon in On Demand was dicta that had not altered the traditional standards governing infringement by multiple parties, and thus affirmed the findings of the magistrate judge. BMC Resources, Inc. v. Paymentech, L.P., No. 3-03-CV-1927-M (N.D.Tex. May 24, 2006) (Order). Finding no law on point from this court governing direct infringement by multiple parties performing different parts of the single claimed method, the district court reviewed opinions from other district courts. Based on that review, the trial court determined that Paymentech would only infringe if the record showed that it directed or controlled the behavior of the financial institutions that performed those claimed method steps that Paymentech did not perform. The district court determined that the record did not contain any such evidence of direction or control. In a surfeit of care, the district court went further to determine that even under the looser standard for joint infringement of a single claim advocated by BMC, the record would still need to contain “some connection” between Paymentech and the firms taking the additional claimed steps. Even under this relaxed rule, the trial court found no support for a finding of infringement by Paymentech. Thus, the district court granted Paymentech’s motion for summary judgment. Lacking any evidence of direct infringement, the district court further dismissed BMC’s" }, { "docid": "23576188", "title": "", "text": "57 of the '553 patent? Answer separately for each defendant. ViaCell YES X_ NO _ CBR YES _X_ NO_ Cryo-CellYES X_ NO_ CorCell YES X_ NO _ PharmaStem thus received special verdicts of both direct joint infringement and contributory infringement. My colleagues grant JMOL on the ground that since the defendants are providing a service, not selling a product, they can not meet the “sale” requirement of contributory infringement, 35 U.S.C. § 271(c). Phar-maStem points out that a reasonable jury could have found that the defendants sell (rent) their blood-storage facilities to the donor’s family, and that the defendants either contribute to or act in concert with the transplanting surgeon to practice the claimed method. The principles of patent infringement are not negated when the steps of a method claim are performed by more than one entity. There was no instruction as to legal impossibility of liability as to the '553 patent, and no objection was raised to the verdict questions. We are not told whether the legal theory of sale or rent was aired at the trial, but it is apparent that the jury was fully apprised of the nature of the accused activities, as reflected in the jury questions. The processes of litigation require appellate review on the premises of the jury trial, lest invited error dominate trial tactics. No objection was raised to the jury instructions. The distinction relied on by the panel majority, that the defendants were bailees, not sellers, does not negate the principles of infringement, whether viewed as joint infringement or contributory infringement. See, e.g., On Demand Machine Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1334 (Fed.Cir.2006) (approving instruction that “It is not necessary for the acts that constitute infringement to be performed by one person or entity”) Phar-maStem is correct that the issue to which this evidence applies relates to damages, not infringement, and points to the small amount of damages awarded for infringement of the '553 patent (damages for the '553 patent were not appealed by the defendants). It is irrelevant whether any steps of a method claim can be viewed" }, { "docid": "23145646", "title": "", "text": "the majority, and contains vast potential for abuse. In turn, the two cases here on appeal can readily be resolved under existing law, as the majority opinion almost acknowledges in its remand instructions. Maj. op. 1318-19. In contrast, a significant minority of the en banc court continues to favor the “single-entity rule,” whereby divided infringement is not actionable at all unless all of the participants are in a contract or agency relationship that is directed or controlled by a single “mastermind.” Although review of the singe-entity rule was the sole reason for this rehearing en banc, and the sole question briefed by the parties and the amici curiae, this aspect is not resolved by the majority, which simply states that it will not review the law of direct infringement, apparently on the theory that the inducement-only rule renders irrelevant whether there is a single mastermind of the direct infringement. Neither faction provides a reasonable answer to the en banc questions concerning divided infringement. However, the issues of liability and remedy arising from interactive methods and collaborative performance are readily resolved by application of existing law. Issues of induced infringement are not new, but this aspect is ill served by the majority’s distortion of the inducement statute, 35 U.S.C. § 271(b), and has no support in theory or practice. This new rule simply imposes disruption, uncertainty, and disincentive upon the innovation communities. I respectfully dissent. Discussion This en banc court was convened in order to resolve inconsistencies in past panel rulings for situations in which different entities perform separate parts of a patented method. In the two earlier decisions whose rulings were the announced focus of this en banc review, BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed.Cir.2007) and Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed.Cir.2008), panels of this court held that when separate entities perform the steps of a patented method, there cannot be direct infringement unless a single mastermind directs or controls the performance of all of the steps. These decisions held that since there cannot be direct infringement without such direction or control, there" }, { "docid": "22295516", "title": "", "text": "decision in the case.” (Appellee’s Br. 32.) In other words, BMC’s interpretation of On Demand goes beyond settled law. On Demand did not change this court’s precedent with regard to joint infringement. Infringement requires, as it always has, a showing that a defendant has practiced each and every element of the claimed invention. Warner-Jenkinson, 520 U.S. at 40, 117 S.Ct. 1040 (element-by-element analysis for doctrine of equivalents). This holding derives from the statute itself, which states “whoever without authority makes, uses, offers to sell, or sells any patented invention within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. § 271(a) (2000). Thus, liability for infringement requires a party to make, use, sell, or offer to sell the patented invention, meaning the entire patented invention. Where a defendant participates in infringement but does not directly infringe the patent, the law provides remedies under principles of indirect infringement. However, this court has held that inducement of infringement requires a predicate finding of direct infringement. Dynacore, 363 F.3d at 1272. Two such cases that have found that a party cannot be liable for direct infringement because the party did not perform all the steps are Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1568 (Fed.Cir.1983) (finding no direct infringement by manufacturer who performed the first step of a process claim even where its customer performed the other step of the claim) and Cross Medical Products, 424 F.3d at 1311 (rejecting patentees’ efforts to combine the acts of surgeons with those of a medical device manufacturer to find direct infringement of an apparatus claim). Courts faced with a divided infringement theory have also generally refused to find liability where one party did not control or direct each step of the patented process. See BMC Resources, Inc. v. Paymentech, L.P., 2006 WL 306289 (N.D.Tex. Feb. 9, 2006) (“No court has ever found direct infringement based on the type of arms-length business transaction presented here.”); Faroudja Labs. v. Dwin Elecs., Inc., 1999 WL 111788, 1999 U.S. Dist. LEXIS 22987" }, { "docid": "23576137", "title": "", "text": "and does not argue here, that liability could be premised on a theory of \"joint” or \"divided” infringement, even in the absence of a finding of contributory infringement under 35 U.S.C. § 271(c). Under that theory, two related parties are both deemed liable for direct infringement of a method patent when each performs some steps of the claimed method. The viability and scope of that theory of liability is a subject of considerable debate; it has been addressed in a number of district court cases, adverted to in a few of this court's cases, and discussed at some length by commentators. See On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1334 (Fed.Cir.2006); Cross Med. Prods., Inc. v. Medtronic Sofamor Danelc, Inc., 424 F.3d 1293, 1311 (Fed.Cir.2005); Kristin E. Gerdelman, Subsequent Perfonnance of Process Steps by Different Entities: Time to Close Another Loophole in U.S. Patent Law, 53 Emory L.J.1987 (2004); Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA QJ. 255 (2005); Sriranga Veeraraghavan, Joint Infringement of Patent Claims: Advice for Pat- eniees, 23 Santa Clara Computer & High Tech L.J. 211 (2006). That issue is squarely presented in a case now pending before this court, BMC Resources, Inc. v. Paymentech, L.P., No.2006-1503. In this case, PharmaS-tem’s theory of liability was that the defendants were liable under section 271(c) for contributory infringement, not under section 271(a) for direct infringement, and PharmaS-tem has continued to press that theory on appeal. We therefore are not presented with the question whether the defendants could have been held liable under section 271(a) under a theory of joint direct infringement through their activities in conjunction with the transplanters. NEWMAN, Circuit Judge, dissenting. I respectfully dissent. After a three week trial the jury sustained the validity of these patents, the district court in a thorough opinion upheld the verdicts of validity, and validity was confirmed in three reexaminations by the Patent and Trademark Office. Today my colleagues on this panel hold that the inventions in the '681 patent and its continuation-in-part the '558 patent are obvious to them, and not infringed. The" }, { "docid": "23145742", "title": "", "text": "(“It is a well-established principle of statutory construction (and of common sense) that when ... ‘two words or expressions are coupled together, one of which generally includes the other, it is obvious that the more general term is used in a meaning excluding the specific one.”’) (quoting J. Sutherland, Statutes and Statutory Construction § 266 p. 349 (1891)). C. Traditional Principles of Vicarious Liability Still Apply to § 271(a) Our “divided infringement” case law is rooted in traditional principles of vicarious liability. BMC held that, where the actions of one party can be legally imputed to another such that a single entity can be said to have performed each and every element of the claim, that single entity is liable as a direct infringer. 498 F.3d at 1380-81. Before BMC, the judiciary and the patent law community generally recognized that multiple actors could together infringe a patent only if one somehow controlled the other(s). See Mobil Oil Corp. v. Filtrol Corp., 501 F.2d 282, 291-92 (9th Cir.1974) (“Mobil contends that Filtrol and Texaco split between them the performance of the four steps of the claim.... We question whether a method claim can be infringed when two separate entities perform different operations and neither has control of the other’s activities. No case in point has been cited.” (emphasis added)); Mark Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 255, 258 (2005) (“[C]ourts have imposed liability for direct infringement where another person acts as an agent of the alleged infringer.” (emphasis added)). Applying traditional principles of vicarious liability to direct infringement under § 271(a) protects patentees from a situation where a party attempts to “avoid infringement ... simply by contracting out steps of a patented process to another entity.... It would be unfair indeed for the mastermind in such situations to escape liability.” BMC, 498 F.3d at 1381. BMC’s holding that direct infringement liability under § 271(a) — in the context of joint actors — exists only where one party was shown to “control or direct each step of the patented process,” 498 F.3d at 1380, is properly rooted in the" }, { "docid": "23576136", "title": "", "text": "VI This was a closely contested case both at trial and on appeal, and the JMOL motions presented the district court with an unusually difficult set of challenges. We are satisfied that the district court correctly resolved each of the issues that the parties have raised and we have addressed on appeal, with the sole exception of the cross-appeal on the issue of obviousness. We therefore affirm the judgment of the district court with respect to the appeal but reverse the judgment on the cross-appeal with respect to the issue of obviousness. As to that issue, we reverse and remand to the district court for entry of judgment in the defendants’ favor. Each party shall bear its own costs for this appeal and cross-appeal. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. . The parties and the district court discussed the issue of joint infringement in the context of determining whether there was infringing conduct sufficient to serve as a predicate for a finding of contributory infringement. Phar-maStem did not argue before the district court, and does not argue here, that liability could be premised on a theory of \"joint” or \"divided” infringement, even in the absence of a finding of contributory infringement under 35 U.S.C. § 271(c). Under that theory, two related parties are both deemed liable for direct infringement of a method patent when each performs some steps of the claimed method. The viability and scope of that theory of liability is a subject of considerable debate; it has been addressed in a number of district court cases, adverted to in a few of this court's cases, and discussed at some length by commentators. See On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1334 (Fed.Cir.2006); Cross Med. Prods., Inc. v. Medtronic Sofamor Danelc, Inc., 424 F.3d 1293, 1311 (Fed.Cir.2005); Kristin E. Gerdelman, Subsequent Perfonnance of Process Steps by Different Entities: Time to Close Another Loophole in U.S. Patent Law, 53 Emory L.J.1987 (2004); Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA QJ. 255 (2005); Sriranga Veeraraghavan, Joint Infringement of Patent Claims: Advice for" }, { "docid": "23145706", "title": "", "text": "decisions of the court in BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378-79 (Fed.Cir.2007) and Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed.Cir.2008), which hold that liability under § 271(b) requires the existence of an act of direct infringement under § 271(a), mean ing that all steps of a claimed method be practiced, alone or vicariously, by a single entity or joint enterprise. For these reasons, I respectfully dissent. II. Discussion A. Direct Infringement Liability is a Sine Qua Non of Indirect Infringement Liability The majority essentially skirts the en banc question in the Akamai case by holding that “[b]ecause the reasoning of our decision today is not predicated on the doctrine of direct infringement, we have no occasion at this time to revisit any of those principles regarding the law of divided infringement as it applies to liability for direct infringement under 35 U.S.C. § 271(a).” Maj. Op. 1307. With all due respect to my colleagues in the majority, the question of “joint infringement” liability under § 271(a) is essential to the resolution of these appeals. Divorcing liability under § 271(a) from liability under § 271(b) is unsupported by the statute, subverts the statutory scheme, and ignores binding Supreme Court precedent. 1. The Statutory Scheme Patent infringement is not a creation of common law. It is a statutorily-defined tort. See 3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373, 1379 (Fed.Cir.1998) (“[T]he tort of infringement ... exists solely by virtue of federal statute.”); N. Am. Philips Corp. v. Am. Vending Sales, Inc., 35 F.3d 1576, 1579 (Fed.Cir.1994). “Defining the contours of the tort of infringement ... [thus] entails the construction of the federal statute.” 3D Sys., 160 F.3d at 1379. 35 U.S.C. § 271(a) provides that: Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent. Section 271(a) defines infringement. H.R.Rep. No. 82-1923, at 9 (1952) (“Section 271, paragraph (a), is" }, { "docid": "17981509", "title": "", "text": "PER CURIAM. This case was returned to us by the United States Supreme Court, noting “the possibility that [we] erred by too narrowly circumscribing the scope of § 271(a)” and suggesting that we “will have the opportunity to revisit the § 271(a) question.... ” Limelight Networks, Inc. v. Akamai Techs., Inc., — U.S. -, 134 S.Ct. 2111, 2119, 2120, 189 L.Ed.2d 52 (2014). We hereby avail ourselves of that opportunity. Sitting en banc, we unanimously set forth the law of divided infringement under 35 U.S.C. § 271(a). We conclude that, in this case, substantial evidence supports the jury’s finding that Limelight Networks, Inc. (“Limelight”) directly infringes U.S. Patent 6,108,703 (the “'703 patent”) under § 271(a). We therefore reverse the district court’s grant of judgment of nonin-fringement as a matter of law. I. Divided InfRingement Direct infringement under § 271(a) occurs where all steps of a claimed method are performed by or attributable to a single entity. See BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1379-81 (Fed.Cir.2007). Where more than one actor is involved in practicing the steps, a court must determine whether the acts of one are attributable to the other such that a single entity is responsible for the infringement. We will hold an entity responsible for others’ performance of method steps in two sets of circumstances: (1) where that entity directs or controls others’ performance, and (2) where the actors form a joint enterprise. To determine if a single entity directs or controls the acts of another, we continue to consider general principles of vicarious liability. See BMC, 498 F.3d at 1379. In the past, we have held that an actor is liable for infringement under § 271(a) if it acts through an agent (applying traditional agency principles) or contracts with another to perform one or more steps of a claimed method. 'See BMC, 498 F.3d at 1380-81. We conclude, on the facts of this case, that liability under § 271(a) can also be found when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps" }, { "docid": "23145743", "title": "", "text": "them the performance of the four steps of the claim.... We question whether a method claim can be infringed when two separate entities perform different operations and neither has control of the other’s activities. No case in point has been cited.” (emphasis added)); Mark Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 255, 258 (2005) (“[C]ourts have imposed liability for direct infringement where another person acts as an agent of the alleged infringer.” (emphasis added)). Applying traditional principles of vicarious liability to direct infringement under § 271(a) protects patentees from a situation where a party attempts to “avoid infringement ... simply by contracting out steps of a patented process to another entity.... It would be unfair indeed for the mastermind in such situations to escape liability.” BMC, 498 F.3d at 1381. BMC’s holding that direct infringement liability under § 271(a) — in the context of joint actors — exists only where one party was shown to “control or direct each step of the patented process,” 498 F.3d at 1380, is properly rooted in the doctrine of vicarious liability. See also Muniauction, 532 F.3d at 1329. Both tort and agency law guide BMC’s test. See Restatement (Second) of Torts § 877 (1979) (“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ... orders or induces the conduct ..., [or] controls, or has a duty to use care to control, the conduct of the other ... and fails to exercise care in the control.... ” (emphases added)); Restatement (Third) of Agency § 1.01 (2006) (“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”); Restatement (Second) of Torts § 315 (1965) (“There is no duty so to control to the conduct of a third person as to prevent him from causing physical harm to another unless ... a special relation exists between the actor and" }, { "docid": "23145673", "title": "", "text": "forms of indirect infringement liability, it is necessary to establish that the claimed invention is directly infringed. My colleagues hedge, and while acknowledging that “there can be no indirect infringement without direct infringement,” maj. op. 1308, the court holds that there need not be direct infringers. I need not belabor the quandary of how there can be direct infringement but no direct infringers. Judge Rich, in Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1469 (Fed.Cir.1990), explained that under common law “[contributory infringement] liability was under a theory of joint tortfeasence, wherein one who intentionally caused, or aided and abetted, the commission of a tort by another was jointly and severally liable with the primary tortfeasor.” The requirement of a “primary tortfeasor” applies to inducement, as has long been understood: “Liability under 35 U.S.C. 271(b) requires the existence of direct infringement by another party which is actionable under 35 U.S.C. 271(a).” C. Miller, Some Views on the Law of Patent Infringement by Inducement, 53 J. Pat. Off. Soc’y 86, 102 (1971). I take note of the majority’s statement that an inducer is not liable for inducing “others to engage in conduct that is not within the claims of the patent in suit.” Maj. op. 1312 n. 4 (citing Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963)). That statement is incomplete, for when the direct infringer is not liable, for whatever reason, the performance of claim steps is not prohibited by law. When the performance of the claim steps is not unlawful, the inducer cannot be liable for inducing infringement, on any theory of tort or criminal or patent law. See Shuttlesworth, 373 U.S. at 265, 83 S.Ct. 1130 (“It is generally recognized that there can be no conviction for aiding and abetting someone to do an innocent act.”). Precedent routinely reflects that liability for inducement depends on liability for direct infringement. In Mel-Coil Systems Corp. v. Korners Unlimited, Inc., 803 F.2d 684, 687 (Fed.Cir.1986) the court held that there was no liability for induced infringement by sale of equipment for use" }, { "docid": "22295519", "title": "", "text": "every element of the claimed invention. By contrast, indirect liability requires evidence of “specific intent” to induce infringement. Another form of indirect infringement, contributory infringement under § 271(c), also requires a mens rea (knowledge) and is limited to sales of components or materials without substantial noninfringing uses. Under BMC’s proposed approach, a patentee would rarely, if ever, need to bring a claim for indirect infringement. The concerns over a party avoiding infringement by arms-length cooperation can usually be offset by proper claim drafting. A patentee can usually structure a claim to capture infringement by a single party. See Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 255, 272-75 (2005). In this case, for example, BMC could have drafted its claims to focus on one entity. The steps of the claim might have featured references to a single party’s supplying or receiving each element of the claimed process. However, BMC chose instead to have four different parties perform different acts within one claim. BMC correctly notes the difficulty of proving infringement of this claim format. Nonetheless, this court will not unilaterally restructure the claim or the standards for joint infringement to remedy these ill-conceived claims. See Sage Prods. Inc. v. Devon Indus. Inc., 126 F.3d 1420, 1425 (Fed.Cir.1997) (“[A]s between the patentee who had a clear opportunity to negotiate broader claims but did not do so, and the public at large, it is the paten-tee who must bear the cost of its failure to seek protection for this foreseeable alteration of its claimed structure.”) Ill Applying these standards to BMC’s charges against Paymentech properly results in a finding of no infringement. Although BMC proffered evidence to establish some relationship between Paymentech and the debit networks, the magistrate and the district court both concluded that this evidence was insufficient to create a genuine issue of material fact as to whether Paymentech controls or directs the activity of the debit networks. Specifically, the magistrate and district court found BMC’s evidence that Paymen-tech provides data (debit card number, name, amount of purchase, etc.) to the debit networks, absent any evidence that" } ]

[ { "docid": "22696271", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. The District Court vacated a labor arbitration award in a grievance case which involved a plant promotion. It held that the arbitrator had exceeded his authority in the interpretation of the collective bargaining agreement. Fletcher, the employee who won the award, and his union, Local 416, have appealed from the order of the court below, 275 F.Supp. 776. Initially, it should be emphasized that this case does not involve the question of the arbitrability of the dispute. We are not to decide whether the arbitrator had the power or jurisdiction to hear the grievance in question. The parties agree that the grievance was a proper subject of arbitration. The controversy arises over the arbitrator’s interpretation of provisions of the agreement, specifically, that portion governing the promotion of personnel within certain job classifications. I. Before reaching the issue of whether the District Court erred in vacating the award, we have this threshold question to consider: what is the proper role of a court in reviewing an arbitrator’s interpretation of provisions of a collective bargaining agreement? The Supreme Court has addressed itself to this specific point in United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960): “It is the arbitrator’s construction which was bargained for and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” “Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 80 S.Ct. at 1361 (emphasis supplied). Enterprise enunciated a basic philosophy that was to apply to all labor arbitration cases. It" } ]

[ { "docid": "23199831", "title": "", "text": "activities.” Holly’s appeal presents the usual argument of parties seeking to invalidate adverse arbitration awards. The Company insists that, under the teachings of the “Trilogy”, the question of whether a particular grievance is arbitrable requires less judicial scrutiny than the question of whether an award once rendered is enforceable. Arguing that the arbitrator exceeded his powers, the appellant relies principally on United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. at 597, 80 S.Ct. at 1361. It is well established that arbitration is a matter of contract and that arbitration provisions are construed with great liberality. See, e.g. United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 Sup.Ct. 1347, 4 L.Ed.2d 1409 (1960). Moreover, Holly is quite correct in its argument that simply because a court would compel arbitration in a particular dispute does not necessarily mean that it would approve of everything or anything which the arbitrator might decide in resolving the dispute. See Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966); International Ass’n of Machinists AFL-CIO v. Hayes Corp., 296 F.2d 238 (5th Cir. 1961), rehearing denied, 316 F.2d 90 (1963). However, if the scope of judicial review in post-award proceedings were as broad as the appellant suggests, we would be tempted to slip into the practice, so prevalent before the “Trilogy”, of “deciding the merits in the guise of adjudicating the court-reserved issue of the scope * * * of the agreement to arbitrate.” United States Gypsum Co. v. United Steelworkers, 384 F.2d 38, 49 (5th Cir. 1967), cert. denied, 389" }, { "docid": "23507545", "title": "", "text": "of his award, Arbitrator Warns found that “the introduction of the Hendrix [VDT] system, a technological change, has sufficient impact on the job elements of the Composing Room as to warrant the imposition of a duty to bargain about such impact.” A determination of whether or not the arbitrator exceeded his authority must be made by reference to the contract because, as the Supreme Court has ruled, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). The arbitrator’s authority to enter Part 2 of his award, if any, derives from the “new process” clause of § 4 of the collective bargaining agreement which provides, in relevant part, that In the event of the introduction into Composing Room work of any process, machinery or equipment which functions as a substitute for, or evolution of, the typesetting and typecasting processes that were in use at the date this contract became effective, all questions concerned with the method of operation, the complement of men required or the retraining of affected employees shall be determined by the Joint Standing Committee, .... (Emphasis added.) The “new process” clause explicitly limits questions which may be submitted to arbitration in the event of the introduction of a substitute process to (1) method of operation, (2) complement of men and (3) retraining. The district court acknowledged these limitations, but assumed, without examination, that a directive to bargain over “impact” fitted within these categories. Negotiating over the impact of the VDT system on composing room employees would include bargaining over a broad range of items including, but not limited to, issues such" }, { "docid": "14680303", "title": "", "text": "court’s order and approving the arbitrator’s grant of a windfall payment in the form of severance pay to all Chrysler employees including those employees rehired by U.S. Marine. Although this court’s review of an arbitration award is limited, that does not mean we are powerless to overturn awards that are clearly not intended by the parties to the collective bargaining agreement. As we explained in Young Radiator Company v. International Union UAW, 734 F.2d 321, 323 (7th Cir.1984): “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (quoting United States of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)) (footnote omitted). We further stated in Ethyl Corporation v. U.S. Steelworkers of America, 768 F.2d 180, 187 (7th Cir.1985): “This is not to say that simply by making the right noises — noises of contract interpretation — an arbitrator can shield from judicial correction an outlandish disposition of a grievance. There are cases, such as our Young Radiator case cited earlier, where no hypothesis other than that the arbitrator was importing into the dispute his own ideas of industrial justice would be tenable, no matter what he said.” See also, Hill v. Norfolk & Western Ry., 814 F.2d 1192 (7th Cir.1987). Here, the arbitrator superimposed a severance pay plan onto the collective bargaining agreement which did not provide for a severance pay plan itself and in so doing he added to the terms of the collective bargaining agreement contrary to the express language of the agreement. The agreement provided that “The arbitrator shall have authority only to decide questions as to the meaning and application of the terms of this Agreement, and such arbitrator shall" }, { "docid": "8535211", "title": "", "text": "contentions of the parties, we must first review the relevant case law in order to chart the bounds of the arbitrator’s authority and the scope of our review of his award. In the Steelworkers trilogy, United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S. Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S. Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior and Gulf Navigation Company, 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), which established the primacy of arbitration in the resolution of labor disputes, the Supreme Court set forth the principal limitations on an arbitrator’s authority: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreements; he does not dispense his own brand of industrial justice. . . . His award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse .enforcement of the award. Enterprise Wheel, supra at 597, of 363 U.S., at 1361 of 80 S.Ct. In following the Steelworkers trilogy, the Third Circuit added: [W]e hold that a labor arbitrator’s award does “draw its essence from the collective bargaining agreement” if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context, and any other indicia of the parties’ intention; only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award. Ludwig Honold Mfg. Co. v. Fletcher and United Auto Workers, Local 416, 405 F.2d 1123, 1128 (3d Cir. 1969) (footnote omitted). And, in Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir. 1972), the court defined still further some of the limits on an arbitrator’s authority: For, in holding that an arbitrator’s award does not draw its essence from the agreement if the arbitrator’s interpretation cannot" }, { "docid": "14680302", "title": "", "text": "stated that the arbitrator shall not “add, delete or modify any of the terms of this Agreement.” Further, the Majority, in enforcing the arbitrator’s award of severance pay to all former Chrysler employees regardless of whether they were rehired by U.S. Marine ignores the parties’ intention that severance pay, if it was ever to be awarded, by its very definition was only intended to serve the limited purpose of providing a transition allowance for employees terminated by Chrysler until they found new employment. Contrary to the intent of the parties, the arbitrator’s award provides all Chrysler employees with the windfall payment they shall now receive as a result of this court’s approval of the arbitrator’s award. Because the arbitrator awarded severance pay despite the fact that the collective bargaining agreement contains no provision regarding severance pay, the arbitrator’s award constitutes an amendment to the collective bargaining agreement contrary to the express terms of the agreement and has no basis in the record. Therefore, I dissent from that portion of the Majority opinion affirming the district court’s order and approving the arbitrator’s grant of a windfall payment in the form of severance pay to all Chrysler employees including those employees rehired by U.S. Marine. Although this court’s review of an arbitration award is limited, that does not mean we are powerless to overturn awards that are clearly not intended by the parties to the collective bargaining agreement. As we explained in Young Radiator Company v. International Union UAW, 734 F.2d 321, 323 (7th Cir.1984): “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (quoting United States of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960))" }, { "docid": "18774145", "title": "", "text": "review of labor arbitration awards is extremely limited. See United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987); Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 184 (7th Cir.1985), cert. denied, 475 U.S. 1010, 106 S.Ct. 1184, 89 L.Ed.2d 300 (1986). As the Supreme Court has observed, “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Accordingly, courts are not authorized to reconsider the merits of an arbitration award. Misco, 484 U.S. at 36, 108 S.Ct. at 370; Enterprise Wheel & Car, 363 U.S. at 596, 80 S.Ct. at 1360. In Enterprise Wheel & Car, the Supreme Court described the proper function of an arbitrator, as well as that of a reviewing court as follows: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. 363 U.S. at 597, 80 S.Ct. at 1361; see also Randall v. Lodge No. 1076, Int’l Ass’n of Machinists & Aerospace Workers, 648 F.2d 462, 465 (7th Cir.1981) (noting that “the role of judicial review in the arbitration context is that the arbitrator’s decision should not be upset unless it ... fails to draw its essence from the collective bargaining contract because it exceeds the confines of interpreting and applying the contract.”). Thus, it is now well established that an arbitration award will be enforced “so long as it ‘draws its essence from the collective bargaining agreement’ even if the court thinks the arbitrator misconstrued the contract.” Ethyl Corp., 768 F.2d at" }, { "docid": "8827909", "title": "", "text": "United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987); see also Mountaineer Gas Co. v. Oil, Chemical & Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir.1996) (describing the court’s role as determining “only whether the arbitrator did his job — not whether he did it well, correctly, or reasonably, but simply whether he did it” (citing Remmey v. PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir.1994))). The court nevertheless retains the obligation to insure that the arbitrator has acted within the contractually-drawn boundaries of his authority. This is important because an arbitrator ... does not sit to dispense his own brand of industrial justice.... [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Thus, a court must vacate an arbitrator’s award if it violates clearly established public policy, fails to draw its essence from the collective bargaining agreement, or reflects merely the arbitrator’s personal notions of right and wrong. See Mountaineer Gas, 76 F.3d at 608. While an arbitrator is generally under no obligation to provide reasons for his decision, Enterprise Wheel, 363 U.S. at 598, 80 S.Ct. 1358, a court reviewing an arbitration award must satisfy itself that the award is grounded in the collective bargaining agreement rather than in the arbitrator’s “own brand of industrial justice,” id. at 597, 80 S.Ct. 1358. One way to test the validity of an arbitration award on this basis is to ask “whether the award ignored the plain language of the [collective bargaining agreement].” Mountaineer Gas, 76 F.3d at 608. Ill Turning now to the case before us, the 17 grievants complained that Champion’s delay in informing them that the “general utility” crew jobs would be eliminated by the across-the-board reduction in force interfered with their ability to bid for other jobs. They" }, { "docid": "22987158", "title": "", "text": "Union of Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983), wording derives from the statement in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960), that an arbitrator’s award under a collective bargaining agreement “is legitimate only so long as it draws its essence from the collective bargaining agreement.” The surrounding language makes clear that what is meant is that the award is valid provided it is an attempt to interpret the collective bargaining agreement rather than to apply .the arbitrator’s own ideas of right and wrong: “an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (For a recent application of this standard by this court see Young Radiator Co. v. U.A.W. Local Union No. 37, 734 F.2d 321 (7th Cir.1984).) The liability as distinct from remedial aspect of the award in this case — that is, the finding that Miller improperly failed to give preferential consideration to the former employees of Schlitz’s Milwaukee brewery — passes this not very demanding test. The arbitrator purported to be interpreting the language of the collective bargaining agreement in finding that the clause had been violated. His interpretation may very well have been incorrect, but that is none of our business. Our function is complete when we are satisfied that the arbitrator was not dispensing qadi justice but was construing the collective bargaining agreement. He was doing that when he held that the Schlitz employees had been “laid off” within the meaning of the collective bargaining agreement, if not within the usual meaning of the term which connotes a temporary rather than permanent cessation of employment. But we do not" }, { "docid": "12422173", "title": "", "text": "the four corners of the agreement to find the essence of his decision....” NCR Corp., 906 F.2d at 1504. In fact, the arbitrator’s painstaking analysis of the Provision and of the permissible extrinsic evidence definitively demonstrates that his award drew its essence from the Agreement, and was not an attempt to dispense his own sense of industrial justice. See United Steelworkers, 363 U.S. 593, 80 S.Ct. 1358. In addition, we are not convinced, as was the district court, that it can be said with positive assurance that the Provision is not susceptible to the arbitrator’s interpretation. See Safeway, 889 F.2d at 947. We must conclude that the arbitrator’s award is not “so unfounded in reason and fact, so unconnected with the wording and purpose of the ... agreement as to ‘manifest an infidelity to the obligation of the arbitrator’ ”, Mistletoe Express Service v. Motor Expressmen’s Union, 566 F.2d 692, 694 (10th Cir.1977) (quoting Brotherhood of Railroad Trainmen v. Central of Georgia Railway Co., 415 F.2d 403, 415 (5th Cir.1969)), that the essence of the award has not been drawn from the Agreement or that it violates the express language of the Agreement. Because “[i]t is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers, 363 U.S. at 599, 80 S.Ct. at 1362. As we held in NCR Corp., 906 F.2d at 1506, it is not our function to determine whether the arbitrator misinterpreted the Agreement. “[A]s we have explained and emphasized, our function is to do no more than determine whether the arbitrator’s decision was drawn from the Agreement and the several permissible sources he employed to enable him to render his ... [ajward. We hold that the arbitrator here fully complied with his assignment, in that his award drew its essence form the parties’ collective bargaining Agreement.” Id. Accordingly, the district court’s order of July 15, 1991 is REVERSED, and the arbitrator’s Opinion and Award is to be reinstated" }, { "docid": "17660292", "title": "", "text": "undermined. See United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Such “judicial second-guessing ... would transform a binding process into a purely advisory one, and ultimately impair the value of arbitration for labor and management alike.” Westvaco Corp. v. United Paperworkers Int’l Union, 171 F.3d 971, 974 (4th Cir.1999) (internal quotation marks omitted). An arbitrator does not have carte blanche, however, to “dispense his own brand of industrial justice.” Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. 1358. Rather, “an arbitrator is confined to interpretation and application of the collective bargaining agreement.” Id. “[H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. The requirement that the award “draw its essence” from the parties’ agreement means that “[t]he arbitrator may not'ignore the plain language of the contract.” Misco, 484 U.S. at 38, 108 S.Ct. 364. When the arbitrator ignores the unambiguous language chosen by the parties, the arbitrator simply fails to do his job. See Mountaineer Gas, 76 F.3d at 610. Underlying judicial deference to arbitral awards is the principle that the terms of the parties’ agreement are controlling. This same principle requires courts to vacate awards when an arbitrator exceeds his authority under a collective bargaining agreement. When the parties bargain for an arbitrator’s construction of a contract, “the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. 1358. Likewise, when the parties have not agreed to arbitrate a matter, the arbitrator lacks authority to resolve the matter, “[f|or arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers of America v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). An arbitrator “is rather part of" }, { "docid": "23235820", "title": "", "text": "and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from any sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960) (emphasis added); see also W.R. Grace & Co. v. Local Union 759, International Union of United Rubber, Cork, Linoleum & Plaster Workers of America, 461 U.S. 757, 765-66, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). An award fails to derive its essence from the agreement when (1) an award conflicts with express terms of the collective bargaining agreement, see, e.g., Grand Rapids Die Casting Corp. v. Local Union No. 159, U.A.W, 684 F.2d 413 (6th Cir.1982); (2) an award imposes additional requirements that are not expressly provided in the agreement, see, e.g., Sears, Roebuck & Co. v. Teamsters Local Union No. 243, 683 F.2d 154 (6th Cir.1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983); (3) an award is without rational support or cannot be rationally derived from the terms of the agreement, see, e.g., Timken Co. v. United Steelworkers of America, 482 F.2d 1012 (6th Cir.1973); and (4) an award is based on general considerations of fairness and equity instead of the precise terms of the agreement, see, e.g., Local 342, United Auto Workers v. T.R. W, Inc., 402 F.2d 727 (6th Cir.1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1742, 23 L.Ed.2d 223 (1969). The Company claims that the Arbitrator’s rulings on estoppel and the “300-week minimum” fell within all four enumerated grounds. The portion of the Arbitrator’s decision that the Company was responsible to pay 300 weeks of guaranteed benefits is reasonable and does “draw its essence” from the agreements. The second aspect of his decision that concluded that senior employees who" }, { "docid": "19689410", "title": "", "text": "Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Cases like this one, where the parties agree that there are no genuine issues of material fact in dispute and that the contested issues are purely legal ones, are especially appropriate for summary judgment. It is well established that judicial review of arbitration awards under collective bargaining agreements is extremely narrow. Arch of Illinois, 85 F.3d at 1292; Jasper Cabinet, 77 F.3d at 1028. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), represents the genesis of the modem era approach to judicial review of arbitration decisions. The Supreme Court emphasized in Enterprise Wheel that “[t]he federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of awards.” Id. at 596, 80 S.Ct. at 1360. Yet the Court confirmed that the power of arbitrators was not unlimited: Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. Id. at 597, 80 S.Ct. at 1361. This language remains the touchstone of our review of arbitration awards even today. In order to further illuminate the meaning and import of this fundamental standard, courts have attempted to explain and apply it through various formulas. For example, this court has stated that so long as the award is based on the arbitrator’s interpretation—unsound though it may be—of the contract, it draws its essence from the contract.... It is only when the arbitrator must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract ... that the award can be said not to “draw its essence" }, { "docid": "11411408", "title": "", "text": "4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In the latter case, the Court specifically addressed the question of a court’s proper role in reviewing an arbitrator’s interpretation of provisions of a collective bargaining agreement: “his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 80 S.Ct. at 1361. Further, in Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), a case cited extensively by the parties here, the Court endorsed arbitration as a means to solve either work assignment or representation disputes, even though the NLRB could entertain unfair labor practice charges if the dispute were over representation. The Court also noted that the arbitration procedure must have been fair and the results “not repugnant” to the National Labor Relations Act. 375 U.S. at 271, 84 S.Ct. 401. In addition, if the NLRB were to rule contrary to the arbitrator, the Board’s ruling would take precedence. Id. at 272, 84 S.Ct. 401. See also New Orleans Typographical Union v. NLRB, 5 Cir. 1966, 368 F.2d 755, 767. Presumably, in such a case, the system of “private law,” Warrior & Gulf Navigation Co., supra, 363 U.S. at 581, 80 S.Ct. 1347, must yield to the system of public law expressed in the NLRA and administered by the NLRB. Thus, there must be: (1) an agreement to arbitrate and the parties must be covered by that agreement; (2) an award which draws its “essence” from the agreement and does not exceed the scope of the issues presented to the arbitrator; and (3) an award which is not “repugnant” to the NLRA. There is no dispute in this case that item 1 is present; there was a valid, binding agreement which covered" }, { "docid": "6842734", "title": "", "text": "employee. It is well established that the authority and power of an arbitrator is derived from and limited by the provisions of the contract. In United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960), the Supreme Court said: Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitra tor’s words manifest an infidelity to this obligation courts have no choice but to refuse enforcement of the award. See also, Safeway Stores v. American Bakery & Con. W.I.U., Local 111, 390 F.2d 79 (5 Cir. 1968); and Piggly Wiggly v. Piggly Wiggly, Etc., 611 F.2d 580 (5 Cir. 1980). In the case last cited, we held: Judicial deference to arbitration, however, does not grant carte blanche approval to any decision an arbitrator might make. Machinists, Local 2003 v. Hayes Corp., 5 Cir. 1961, 296 F.2d 238, 243, aff’d on rehearing, 5 Cir. 1963, 316 F.2d 90. The arbitrator’s authority is circumscribed by the arbitration agreement, and he can bind the parties only on issues that they have agreed to submit to him. Whether an arbitrator has exceeded these bounds is an issue for judicial resolution. Torrington Co. v. Metal Products Workers, Local 1645, 2 Cir. 1966, 362 F.2d 677, 680. For that reason, an arbitrator who derives his power solely from the contract cannot hold that charter to be legally ineffective, International Ladies Garment Workers’ Union v. Ashland Industries, Inc., 5 Cir. 1974, 488 F.2d 641, cert. denied, 1975, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68; an arbitrator’s award must draw “its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361, 4 L.Ed.2d at 1428; Safeway Stores v. American Bakery & Confectionery" }, { "docid": "20569325", "title": "", "text": "the parties. See Torrington v. Metal Products Workers Union, 347 F.2d 93, 96 (2d Cir. 1965). This issue is wholly contractual and Humble cannot be compelled to arbitrate the within dispute in the absence of a binding arbitration clause covering the issues in question. Id. It is also clear, however, that we may not under the guise of determining arbitrability review the merits of the award. See United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 569, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf, supra; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The power of a court to vacate an arbitration award is limited to the question whether the arbitrator exceeded the limits of his contractual authority-: When an arbitrator is commissioned to interpret and apply the collective bargaining agreement he is to bring his informed judgment to bear in order to reach a fair solution of a problem. * * * Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of America v. Enterprise Wheel & Car Corp., supra at 597, 80 S.Ct. at 1361. The Arbitrators’ Decision The opinion of the Board of Arbitration’s Impartial Chairman Arthur Stark thoroughly and, we believe, correctly analyzes the dispute in issue and concludes that the issue presented involves an interpretation of an express provision of the Contract itself not resolved exclusively by the Special Agreement. While looking to many sources for guidance as to the proper interpretation, his opinion clearly shows that the award “draws its essence from the collective bargaining agreement.” Thus, this dispute is arbitrable without regard to the further issue" }, { "docid": "18580595", "title": "", "text": "binding, the award is generally non-reviewable by a court. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). The Supreme Court recently re-emphasized this principle: Under well-established standards for the review of labor arbitration awards, a federal court may not overrule an arbitrator’s decision simply because the court believes its own interpretation of the contract would be a better one. [Enterprise Wheel, 363 U.S. at 596, 80 S.Ct. at 1360]. When the parties include an arbitration clause in their collective-bargaining agreement, they choose to have disputes concerning constructions of the contract resolved by an arbitrator. Unless the arbitral decision does not “dra[w] its essence from the collective bargaining agreement,” id., at 597 [80 S.Ct. at 1361], a court is bound to enforce the award and is not entitled to review the merits of the contract dispute. This remains so even when the basis for the arbitrator’s decision may be ambiguous. Id., at 598 [80 S.Ct. at 1361], W.R. Grace & Co. v. Local Union 759, International Union of United Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 (1983); accord McGraw Edison, Wagner Division v. Local 1104, International Union of Electrical Workers, 767 F.2d 485, 487 (8th Cir. 1985). Because it is the arbitrator’s decision for which the parties have bargained, see Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. at 1362, exceptions to this general rule of non-reviewability are narrow: Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. Id. at 597, 80 S.Ct. at 1361 (emphasis added). Thus, where an arbitrator has failed to fulfill his contractual obligation, resulting in an award that does not draw its essence from" }, { "docid": "2317449", "title": "", "text": "stated the genéral rule that arbitration as a means of settling labor disputes is favored and that courts refuse to review the merits of an arbitration award, seeking to effectuate the policy that labor disputes should be resolved by arbitration. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424; United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409; United Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403; United Steelworkers v. Caster Mold & Machine Co., 345 F.2d 429 (6th Cir.). Nevertheless “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. * * * [H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” United Steelworkers v. Enterprise, supra, 363 U.S. at 597, 80 S.Ct. at 1361. Section 6.2 of the collective bargaining agreement in the present case provides as follows: “The Union, its officers, agents, members, and employees covered by this agreement agree that for the duration of this Agreement there shall be no strikes, sitdowns, slowdowns, stoppages of work, boycott or any unlawful acts that interfere with the Company’s operations or production or sale of its products. Any violation of this provision may be made the subject of disciplinary action, including discharge.” Section 4.1 provides that: “The right to hire, lay off, promote, demote, transfer, discharge for cause, maintain discipline require observance of Company rules and regulations and maintain efficiency of employees is the sole responsibility of the Company. ft Section 8.5 provides that employees shall lose their seniority if discharged for cause. The decision of the arbitrator contains the following findings: “It is conceded that an unauthorized work stoppage occurred on the morning of August 13, 1969, which was not condoned, sanctioned or encouraged by either the Local Union or International" }, { "docid": "6339188", "title": "", "text": "apply for any other posted job for a period of six months from the date of his transfer into such posted job * * * The defendants, on the contrary, rely heavily upon the case of United Steelworkers of America v. Enterprise Wheel and Car Corporation, 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), contending that this Court has no right to interfere with the arbitrator’s award and that same is final, binding and conclusive. We are aware of the principles enunciated by the Court in the Enterprise ease, supra, where the Court, at page 596, 80 S.Ct. at page 1360, said, inter alia, as follows: “The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. * * * ” However, the Court there continues, at page 597, 80 S.Ct. at page 1361, with the following language: “ * * * Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Emphasis supplied.) Mere ambiguity in the award or inferences which may be drawn therefrom afford no basis for refusing to enforce the award. Moreover, arbitrators have no obligation to give the reasons for their award, (see page 597 of said opinion.) In the case of Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Company, 330 F.2d 562 (8th Cir. 1964), the Court said, inter alia, as follows at page 563 of the opinion: “As arbitration is a matter of contract, the answer to the question must lie within the four corners of the agreement between" }, { "docid": "23199830", "title": "", "text": "XVII(2), when it hired Zimmer. Moreover, he concluded that Section XVII (2) and Section VII(G) require that when a “new job” is created the employer has an affirmative duty to so notify the Union, as well as to post notice of its creation. And, since throughout the period in controversy other plants covered by the agreement had a “Painter” classification established for persons performing work identical to that done by Zimmer, Burns reasoned that Zimmer was entitled to the same wage and classification as his counterparts from the date of his initial hiring. The arbitrator also found that Holly had incorrectly applied the new classification “Painter (Spray Gun Only)”. He explained that it is normally the responsibility of any painter, whether he paints by spraying, brushing, or rolling, to prepare surfaces either by brushing or cleaning and that because nothing indicated that these normal duties should be excluded for purposes of the job classification agreed upon by the parties in 1965, Zimmer was entitled to a painter’s rate for all time spent in such “painting activities.” Holly’s appeal presents the usual argument of parties seeking to invalidate adverse arbitration awards. The Company insists that, under the teachings of the “Trilogy”, the question of whether a particular grievance is arbitrable requires less judicial scrutiny than the question of whether an award once rendered is enforceable. Arguing that the arbitrator exceeded his powers, the appellant relies principally on United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. at 597, 80 S.Ct. at 1361. It is well established that arbitration is a matter of contract and that" }, { "docid": "17660291", "title": "", "text": "is important to note at the outset that judicial review of arbitration awards is extremely limited — in fact, it is “among the narrowest known to the law.” Union Pac. R.R. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978) (internal quotation marks omitted). A court sits to “determine only whether the arbitrator did his job — not whether he did it well, correctly, or reasonably, but simply whether he did it.” Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir.1996). Indeed, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). If courts were allowed to delve into the merits of an arbitration award, then the federal policy of settling labor disputes by arbitration would be seriously undermined. See United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Such “judicial second-guessing ... would transform a binding process into a purely advisory one, and ultimately impair the value of arbitration for labor and management alike.” Westvaco Corp. v. United Paperworkers Int’l Union, 171 F.3d 971, 974 (4th Cir.1999) (internal quotation marks omitted). An arbitrator does not have carte blanche, however, to “dispense his own brand of industrial justice.” Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. 1358. Rather, “an arbitrator is confined to interpretation and application of the collective bargaining agreement.” Id. “[H]is award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Id. The requirement that the award “draw its essence” from the parties’ agreement means that “[t]he arbitrator may not'ignore the plain language of the contract.” Misco, 484 U.S. at 38, 108" } ]

[ { "docid": "3788717", "title": "", "text": "has said, a trademark is “a common law property right that exists independently of statutory provisions for registration.” Sweetarts v. Sunline, Inc., 380 F.2d 923, 926 (8th Cir.1967). See also Kellogy Co. v. National Biscuit Co., 305 U.S. 111, 117 n. 3, 59 S.Ct. 109, 113 n. 3, 83 L.Ed. 73 (1938) (“[I]t is well settled that registration under [the Trademark Act of 1920] has no effect on the domestic common-law rights of the person whose trade-mark is registered.”). Thus deficiencies in registration, such as failure to renew, or even cancellation, do not affect common law trademark rights. See generally 4A R. Callman, Unfair Competition Trademarks and Monopolies § 25.03, at 14 (4th ed. 1983). Appellant asks us to hold that a manufacturer which registers on the supplemental register comes away with fewer rights than it would have had if it had not sought registration at all. This we decline to do. We turn to whether the district court erred in its granting of the preliminary injunction based upon the evidence before it. Under the test applied by the district court, a moving party establishes its entitlement to preliminary relief if it demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that there exist serious questions regarding the merits and that the balance of hardships tips sharply in its favor. Apple Computer, Inc. v. Formula International Inc., 725 F.2d 521, 523 (9th Cir.1984). See also Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980). The district court concluded that California Cooler had demonstrated probable success on the merits in showing that “California Cooler” was a descriptive mark which had acquired a secondary meaning. It also found possible irreparable injury based on its finding that Loretto’s mark is confusingly similar to “California Cooler.” The court found that the name adopted by the defendant, “California Special Cooler,” was similar to “California Cooler” and that the products are similar and marketed through the same channels. The court also found that the likelihood of confusion created a strong" } ]

[ { "docid": "22964311", "title": "", "text": "perception of who the true creator was. Several general rules regarding application of the four factors of the preliminary injunction test to copyright cases have evolved. First, as the district court correctly noted, irreparable harm is usually presumed if likelihood of success on the copyright claim has been shown. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1229 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984); Atari, Inc., 672 F.2d at 620 (7th Cir.1982); Novelty Textile Mills, Inc., 558 F.2d at 1094 (2d Cir.1977). There is, therefore, no need actually to prove irreparable harm when seeking an injunction against copyright infringement. Secondly, the issue of public policy rarely is a genuine issue if the copyright owner has established a likelihood of success: “Since Congress has elected to grant certain exclusive rights to the owner of a copyright, it is virtually axiomatic that the public interest can only be served by upholding copyright protections and, correspondingly, preventing the misappropriation of the skills, creative energies, and resources which are invested in the protected work.” Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d at 1255 (3d Cir.1983) (quoting Klitzner Industries, Inc. v. H.K. James & Co., 535 F.Supp. 1249, 1259-60 (E.D.Pa.1982)). More important to our decision here is the sometimes questionable relevance of the “balance of hardships” factor to the determination of whether a likely infringer should be preliminarily enjoined. Where the only hardship that the defendant will suffer is lost profits from an activity which has been shown likely to be infringing, such an argument in defense “merits little equitable consideration.” Helene Curtis Industries v. Church & Dwight Co., Inc., 560 F.2d 1325, 1333 (7th Cir.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1252, 55 L.Ed.2d 772 (1978). “Advantages built upon a deliberately plagiarized make-up do not seem to us to give the borrower any standing to complain that his vested interests will be disturbed.” Id. (quoting" }, { "docid": "22562027", "title": "", "text": "for copyright registration. A written confirmation of assignment was executed as of November 12, 1984. Hasbro applied to register copyrights in the United States in both sculptural expressions of each toy on November 29, 1984, listing Takara as the “author” and itself as the “copyright claimant” by virtue of the assignment from Takara. Certificates of registration were granted effective December 3, 1984. Discussion The settled law of this circuit is that a preliminary injunction may be granted only upon a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2 Cir.1979); see, e.g., Mattel, Inc. v. Azrak-Hamway International, Inc., 724 F.2d 357, 359 (2 Cir.1983). Irreparable harm may ordinarily be presumed from copyright infringement. Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2 Cir.1977), cert. denied 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978); accord Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 525 (9 Cir.1984); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3 Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 620 (7 Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). A prima facie case of copyright infringement consists of proof that the plaintiff owns a valid copyright and the defendant has engaged in unauthorized copying. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2 Cir.1977); 3 Nimmer on Copyright § 13.01 (1985) [hereafter Nimmer ]. Since Sparkle admits to unauthorized copying, the only issue before us in reviewing the grant of the preliminary injunction is whether Hasbro’s copyrights for the toys are valid. Under § 410(c) of the Act, Hasbro’s certificates of copyright registration are prima facie evidence that the copyrights" }, { "docid": "6638388", "title": "", "text": "restraining order if: (1) the motion raises serious questions on the merits; and (2) the balance of hardships tips sharply in the moving party’s favor. Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1202 (9th Cir. 1980); Dumas v. Gommerman, 865 F.2d 1093, 1095 (9th Cir. 1989). These standards are not two distinct tests, but are treated as “the opposite ends of a single ‘continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.’ ” Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir. 1987) (quoting San Diego Comm. Against Registration etc. v. Governing Bd. of Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9th Cir. 1986)). Pursuant to Rule 65, a plaintiff seeking a preliminary injunction must meet the same standard. The “party seeking the injunction must demonstrate that it will be exposed to some significant risk of irreparable injury____ A plaintiff must do more than merely allege imminent harm sufficient to establish standing, he ... must demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.” Associated Gen. Contractors of Cal., Inc. v. Coalition for Economic Equity, 950 f.2d 1401, 1410 (9th Cir. 1991). In cases involving public interest the court must also consider whether the public interest favors the plaintiff. DISCUSSION 1. MOTION FOR TEMPORARY RESTRAINING ORDER. A. Likelihood of Success on the Merits. 1. Violation of 4,2 U.S.C. § 1983. Plaintiffs allege a likelihood of success on the merits of their claim under 42 U.S.C. § 1983. Plaintiffs are incorrect. To state a claim for violation of § 1983, a plaintiff must show that the defendant acted under color of state law, and that the defendant’s conduct must have deprived the plaintiff of a constitutional right. Ketchum v. County of Alameda, 811 F.2d 1243, 1245 (9th Cir. 1987). By its own language § 1983 only applies to those individuals acting under col- or of state law. 42 U.S.C. § 1983 (West Supp. 1997). Section 1983 does not apply to federal defendants acting pursuant to federal law, as is the" }, { "docid": "11326423", "title": "", "text": "than the defendant currently sells “Dr. Bone-Savers,” plaintiff should still be allowed to proceed with its motion. Plaintiff has failed to join NDL solely due to the machinations of the defendant and NDL. If we were not to allow plaintiff to proceed, we would reward the defendant and NDL for failing to represent accurately information concerning the manufacture of their knee-pad. Consequently, we shall review plaintiff’s motion for a preliminary injunction. The Ninth Circuit in Model Rectifier Corp. v. Takachiho Int’l, Inc., 709 F.2d 1517, 221 USPQ 502 (9th Cir.1983) stated the standard for preliminary injunctions in trade mark actions: The party who seeks a preliminary injunction to stop a trademark infringement must show either: (1) probable success on the merits and irreparable harm, or (2) that serious questions are raised and the balance of hardships tip sharply in favor of the party requesting relief. Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1134 (9th Cir.1979). The court has further made clear that these “are not two distinct tests, but rather the opposite ends of a single continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.” Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987). Thus, we review the probability of success on the merits and the balance of hardships. 1. Probability of Success on the Merits To establish probable success on the merits in an action for trade dress infringement, the plaintiff must demonstrate the trade dress of its product is protectable. “Trade dress” refers to the appearance of the product and may include features such as size, shape, color, color combinations, texture, or graphics. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). The plaintiff must establish that the appearance of its product: (1) is nonfunctional, (2) has acquired secondary meaning, and (3) is likely to be confused with the “Dr. Bone-Saver” kneepad manufactured by defendant. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987). a. Functionality The central contention between the parties concerns whether the particular combination of features allegedly copied" }, { "docid": "22982530", "title": "", "text": "605 F.2d 1130, 1131 n. 1 (9th Cir.1979). 2. Standard of Review We will set aside the district court’s order denying Rodeo’s request for a prelimi nary injunction only if we conclude that the order was an abuse of discretion, was based on an erroneous legal standard, or was based on clearly erroneous findings of fact. See Bank of America National Trust and Savings Association v. Summerland County Water District, 767 F.2d 544, 547-48 (9th Cir.1985); Apple Computer, Inc. v. Formula International Inc., 725 F.2d 521, 523 (9th Cir.1984). 3. Standard Governing the Issuance of a Preliminary Injunction To qualify for a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party’s favor. Sardi’s Restaurant Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir.1985); Apple Computer, 725 F.2d at 523. These are not two distinct tests, but rather the opposite ends of a single “continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.” San Diego Committee Against Registration And The Draft v. Governing Board of Grossmont Union High School Disk, 790 F.2d 1471, 1473 n. 3 (9th Cir.1986). 4. Probability of Success on the Merits Rodeo alleges that West Seventh has infringed, and continues to infringe, the registered service mark “Rodeo Collection” by calling the new shopping center “The Collection.” Under 15 U.S.C. § 1114(1), any person who uses in commerce a colorable imitation of a registered service mark, without the registrant’s consent and in a way that is likely to cause confusion, is liable for service mark infringement. The parties agree that “Rodeo Collection” is a registered service mark, that Rodeo is using it in commerce, and that West Seventh has adopted the mark “The Collection” for its new shopping center without Rodeo’s consent. Whether West Seventh’s mark is a colorable imitation of Rodeo’s mark is a pivotal factor in assessing the likelihood of confusion. Likelihood of confusion is thus the" }, { "docid": "4609585", "title": "", "text": "TAKASUGI, District Judge. Plaintiff, The C & C Organization, moves this court for an order granting preliminary injunction to enjoin and restrain defendants, their agents, servants, employees, attorneys and all others in active concert or participation with them, during the pendency of this action, from using plaintiffs trade names and service marks CASK ’N CLEAVER and CASK, and confusingly similar variations thereof, including but not limited to the term CASQUE. Issuance of a preliminary injunction is required upon a clear showing by the party seeking such relief of either (1) a combination of probable success on the merits and possible irreparable injury, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping sharply in its favor. California Cooler v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir.1985); Apple Computer, Inc. v. Formula Intern. Inc., 725 F.2d 521, 523 (9th Cir.1984); William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86, 88 (9th Cir.1975). “The alternative tests set forth by Inglis [and its progeny] are not really two entirely separate tests but merely extremes of a single continuum.” Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496, 502 (9th Cir.1980), citing Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1134 (9th Cir.1979); Benda v. Grand Lodge of International Association, 584 F.2d 308, 315 (9th Cir.1978). The critical element in determining the test to be applied is the relative hardship of the parties. Id. If the balance of harm tips decidedly towards the plaintiff, the plaintiff need not show as robust a likelihood of success on the merits, although the plaintiff must at a minimum have a fair chance of success on the merits. Id. Thus, the necessary showing of likelihood of success on the merits decreases as the balance of hardships increases in favor of the movant. Id. Id. Likelihood of Success on Merits In order to qualify for protection under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982), plaintiff must establish both that the word(s) used are valid marks entitled" }, { "docid": "22982529", "title": "", "text": "FARRIS, Circuit Judge: Rodeo Collection, Ltd. owns and operates the Rodeo Collection, an exclusive shopping center located on Rodeo Drive in Beverly Hills. Rodeo holds several registered service marks for the mark “Rodeo Collection” as used in connection with shopping center services. . In 1985, West Seventh and Statler and Waldorf announced plans to open a new shopping center in downtown Los Angeles under the name “The Collection.” Rodeo asked West Seventh to give the new shopping center a different name. West Seventh refused. On February 5, 1986, Rodeo filed suit in district court alleging federal service mark infringement, federal unfair competition, and several related state claims. At the same time, Rodeo moved for a preliminary injunction to enjoin West Seventh from using any colorable imitation of Rodeo’s registered service mark to identify the new shopping center. The district court denied the motion. Rodeo timely appealed. We affirm. DISCUSSION 1. Jurisdiction Appellate jurisdiction is based on 15 U.S.C. § 1121. The district court’s order is a reviewable interlocutory order. See Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1131 n. 1 (9th Cir.1979). 2. Standard of Review We will set aside the district court’s order denying Rodeo’s request for a prelimi nary injunction only if we conclude that the order was an abuse of discretion, was based on an erroneous legal standard, or was based on clearly erroneous findings of fact. See Bank of America National Trust and Savings Association v. Summerland County Water District, 767 F.2d 544, 547-48 (9th Cir.1985); Apple Computer, Inc. v. Formula International Inc., 725 F.2d 521, 523 (9th Cir.1984). 3. Standard Governing the Issuance of a Preliminary Injunction To qualify for a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party’s favor. Sardi’s Restaurant Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir.1985); Apple Computer, 725 F.2d at 523. These are not two distinct tests, but rather the opposite ends of a single" }, { "docid": "23195051", "title": "", "text": "in which the district court is held.” The Mar-coses argue that the freeze of their assets is an attachment and that California law permits attachment only in connection with a claim based upon a contract. Cal.Civ. Proc.Code § 483.010(c). The Marcoses are mistaken. While a freeze of assets has the effect of an attachment, it is not an attachment. F.T.C. v. H.N. Singer, Inc., 668 F.2d 1107, 1112 (9th Cir.1982). The court has power to preserve the status quo by equitable means. A preliminary injunction is such a means. F.T.C., 668 F.2d at 1112. The Standard for Issuance of the Injunction The issuance of the preliminary injunction was not an abuse of discretion by the district court if that court properly concluded that the Republic had shown the probability of success on the merits of its pendent claims and the possibility of irreparable injury, or that the pendent claims raised serious questions and the balance of hardships tipped sharply in favor of the Republic. Hoopa Valley Tribe v. Christie, 812 F.2d 1097, 1102 (9th Cir.1987). “These are not two distinct tests, but rather the opposite ends of a single ‘continuum in which the required showing of harm varies inversely with the required showing of meritoriousness.’ ” Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987) (quoting San Diego Committee Against Registration and the Draft v. Governing Board of the Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9th Cir.1986)). “The critical element in determining the test to be applied is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly.” Benda v. Grand Lodge of Int’l Assoc. of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979) (citation omitted). For the purposes of injunctive relief, “serious questions” refers to questions which cannot be resolved one way or the other at the hearing on" }, { "docid": "10483782", "title": "", "text": "II.B.3, an expressive use is not rendered commercial by the impact of the use on sales. Virginia Pharmacy Bd., 425 U.S. at 762, 96 S.Ct. at 1825-26 (commercial speech merely proposes a commercial transaction). The Court therefore holds that the First Amendment would apply to this use of the trademarks at issue, and that as an expressive use, this use is exempt from the reach of the Federal Trademark Dilution Act. IV. IRREPARABLE INJURY In copyright and trademark cases, irreparable injury is presumed upon a showing of likelihood of success. See Apple Computer, Inc. v. Formula Int'l Inc., 725 F.2d 521, 525 (9th Cir.1984) (copyright); Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1220 (9th Cir.1987) (trademark). Thus if the plaintiff’s showing satisfies the “likelihood of success” standard, preliminary injunctive relief would be justified. The Court finds that Dr. Seuss’s copyright claim satisfies this standard. Dr. Seuss’s trademark claim, although falling short of the above standard, does raise serious questions providing a fair basis for litigation. Under this formulation of the Ninth Circuit test, if the balance of hardships favors the plaintiff, the plaintiff would be entitled to preliminary injunctive relief notwithstanding his failure to prove a likelihood of success on the merits. V. BALANCE OF HARDSHIPS The balance of hardships cuts decidedly in favor of the plaintiff. The works of Dr. Seuss are associated with genuine wit, inventiveness, and wholesomeness. The infringing work appears to fall rather short of its billing as “wickedly clever,” and deals in macabre humor about an infamous and gruesome double murder whose implications for those involved, and for the nation, remain yet to be worked out. Plainly, plaintiff is threatened with the prospect of immediate and irreparable harm to its interests by the further advertising and sales of the Defendant’s work. Cf. Gilliam v. American Broadcasting Co., 538 F.2d 14, 19 (2d Cir.1976) (nationwide broadcast of edited versions of Monty Python comedy group’s programs caused irreparable injury to their professional reputation with an audience then unfamiliar with them). Defendant, on the other hand, faces only the prospect of advertising and sales put off" }, { "docid": "1520594", "title": "", "text": "to preliminary injunctive relief: (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that there exist serious questions regarding the merits and the balance of hardships tips sharply in their favor. Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987); Apple Computer, Inc. v. Formula Intern., Inc., 725 F.2d 521, 523 (9th Cir.1984). B. Probable Success on the Merits Copyright Infringement 6. To establish a prima facie case of copyright infringement, Plaintiffs must prove (1) ownership of a valid copyright in the infringed work, and (2) “copying” by the Defendants. See Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir.1982); 3 Nimmer on Copyright, § 13.01 (1985). 7. Sega’s certificates of registration establish a prima facie valid copyright in its video game programs. 17 U.S.C. § 410(c); Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 523 (9th Cir.1984). Although the complaint and declaration of Jack Yang list specific copyrights infringed by Defendants, Plaintiffs seek and are entitled to an order with respect to all of their copyrighted video games. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156, 1187-88 & n. 2 (W.D.N.Y.1982). 8. The unauthorized copying of copyrighted computer programs is prima facie an infringement of the copyright. See MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993), cert. dismissed, - U.S. -, 114 S.Ct. 671, 126 L.Ed.2d 640 (1994). 9. Sega has established a prima fa-cie case of direct copyright infringement under 17 U.S.C. § 501. Sega has established that unauthorized copies of its games are made when such games are uploaded to the MAPHIA bulletin board, here with the knowledge of Defendant Seherman. These copied games are thereby placed on the storage media of the electronic bulletin board by unknown users. 10. Sega has established that unauthorized copies of these games are also made when they are downloaded to make additional copies by users, which copying is facilitated" }, { "docid": "16585340", "title": "", "text": "a preliminary injunction without a detailed showing of irreparable harm.” Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983) (citing 3 Nimmer on Copyright § 14.06[A], at 14-50 & n. 16 (collecting authorities)), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). The Third Circuit states that the “prevailing view [is] that a showing of a prima facie case of copyright infringement or reasonable likelihood of success on the merits raises a presumption of irreparable harm.” Apple Computer, 714 F.2d at 1254 (citing cases). Because BVHE has established a prima facie case of copyright infringement, it is entitled to a presumption of irreparable harm, thereby satisfying the second factor in determining whether a preliminary injunction shall issue. C. Balancing of the Equities Plaintiff Video Pipeline asserts that it will be irreparably harmed if an injunction were to issue, stating that a preliminary injunction would “remove many previews of home video products from retailers who own lawful copies of the home videos and prevent them from effectively marketing them for rental or sale.” Pl.’s Br. at 34. A basic purpose behind the balancing of the equities analysis is to ensure that the issuance of an injunction would not harm the infringer more than a denial would harm the movant. See Opticians Ass’n of America v. Indep. Opticians of America, 920 F.2d 187, 197 (3d Cir.1990) (citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987)). At issue in this case are approximately 62 clip previews created and provided for online by Video Pipeline, as elucidated in the hearing held in this matter. See Hearing Tr. at 87:10. Plaintiff argues that an injunction will cause retailers, in need of previews to market their products, to discontinue doing business with Video Pipeline and to utilize services provided by Video Pipeline’s competitors. Whether an injunction will irreparably harm Video Pipeline in this case requires determining the impact of the loss of the 62 clip previews on Video Pipeline’s business. Video Pipeline has agreements with approximately 25 Internet retailers to provide their customers with the opportunity to" }, { "docid": "17509752", "title": "", "text": "Playmate in the meta-tagging of defendant’s site. Therefore, the task before the cpurt is to determine whether a preliminary injunction against defendant is warranted in this instance. II. STANDARD OF LAW To be entitled to a preliminary injunction, a party must show either (1) a combination of probable success on the merits and a possibility of irreparable harm,- or (2) the existence of serious questions on the merits and the balance of hardships weighing heavily in its favor. Vision Sports v. Melville, 888 F.2d 609, 612 (9th Cir.1989). These are not two distinct tests, but ends of a continuum in which the required showing of harm “varies inversely with the required showing of meritoriousness.” Rodeo Collection v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987) (citation omitted). “Thus, a moving party need not demonstrate that [it] risks irreparable injury, but [it] must at least show that [it] will suffer a degree of hardship that outweighs the hardship facing the opposing party if the injunction is not issued. Similarly, a moving party need not demonstrate that [it] will succeed on the merits, but must at least show that [its] cause presents serious questions of law worthy of litigation.” Topanga Press, Inc. v. City of L.A., 989 F.2d 1524, 1528 (9th Cir.1993). III. DISCUSSION In general, plaintiff argues that defendant’s use of the Playboy and Playmate trademarks in conjunction with her website is likely to cause confusion, mistake or deception. See Complaint at ¶32. Specifically, PEI avers that these alleged infringements are harming it and its trademarks since web-surfing consumers are likely to believe that defendant’s website is authorized, sponsored or otherwise approved by PEI when it is not. Id. Defendant, on the other hand, contends that her use of the title Playmate of the Year and the abbreviation PMOY is merely á descriptive use of those terms so as to identify herself to her customers. She argues that any other use of PEI’s trademarked terms is merely used in an editorial fashion. In this motion, plaintiff concentrates on defendant’s use of the Playmate of the Year title in Ms. Welles’ web" }, { "docid": "6308155", "title": "", "text": "or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the movant’s favor. See Roe v. Anderson, 134 F.3d 1400, 1401-02 (9th Cir.1998); Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984). These formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases. See Roe, 134 F.3d at 1402. Under the first formulation set forth above, CyberMedia may obtain a preliminary injunction if it demonstrates a likelihood of success on the merits and the possibility of irreparable injury. A. Likelihood Of Success On The Merits In order to prevail on its copyright infringement claim, CyberMedia must prove: (1) ownership of a valid copyright in Uninstaller and (2) copying of expression protected by that copyright. See Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330, 1335 (9th Cir.1995). 1. Ownership Of Copyright As proof that it owns a valid copyright in Uninstaller, CyberMedia offers its copyright registration for the program, dated November 26, 1997. This registration creates a rebuttable presumption that Cyb’erMe-dia’s copyright in the program is valid. See 17 U.S.C. § 410(c); Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1302, 140 L.Ed.2d 468 (1998); Apple Computer, 725 F.2d at 523. Defendants may rebut this presumption by introducing “some evidence or proof’ that CyberMedia’s copyright in the work is not valid. See Entertainment Research Group, 122 F.3d at 1217. If Defendants rebut the presumption, the burden shifts back to CyberMedia to demonstrate the validity of its copyright. See id. at 1218. The Court concludes that, for purposes of the present motion, CyberMedia may meet this burden by showing that it is likely to succeed on the merits of its claim that it owns a valid copyright in Uninstaller. Defendants contend that a plaintiff seeking a preliminary injunction in a copyright action must show more than a likelihood of success on the merits regarding its ownership of a valid copyright; instead," }, { "docid": "22964310", "title": "", "text": "authorship,” see 17 U.S.C. § 102, often may last only until the next fad. Consider, e.g., Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521 (9th Cir.1984) (computer program); Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir.) (PAC-MAN videogame), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982); Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090 (2d Cir.1977) (fabric design). In such situations, the commercial value of the copyright owner’s tangible expression, appropriated by an infringer, may be lost by the time litigation on the claim is complete. Furthermore, monetary recovery at that point may be inadequate to redress the harm. The ultimate commercial success of an “artist” often depends on name recognition and reputation with the value and popularity of each succeeding work depending upon the “name” established through commercial exploitation of preceding works. This can be true whether the “artist” creates musical compositions, video games, or concrete statues. Any ultimate success in a lawsuit could have little effect on public perception of who the true creator was. Several general rules regarding application of the four factors of the preliminary injunction test to copyright cases have evolved. First, as the district court correctly noted, irreparable harm is usually presumed if likelihood of success on the copyright claim has been shown. West Publishing Co. v. Mead Data Central, Inc., 799 F.2d 1219, 1229 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984); Atari, Inc., 672 F.2d at 620 (7th Cir.1982); Novelty Textile Mills, Inc., 558 F.2d at 1094 (2d Cir.1977). There is, therefore, no need actually to prove irreparable harm when seeking an injunction against copyright infringement. Secondly, the issue of public policy rarely is a genuine issue if the copyright owner has established a likelihood of success: “Since Congress has elected to grant certain exclusive rights to the owner of a copyright, it is virtually axiomatic" }, { "docid": "1520593", "title": "", "text": "To the extent facts are included in this portion of the order, they are also deemed the Court’s findings of fact, and visa versa. 2. This Court has jurisdiction of the causes of action arising under copyright law (under 17 U.S.C. § 101 et seq.), federal trademark law (under 15 U.S.C. § 1051 et seq.), and federal claims for unfair competition/false designation of origin (under 15 U.S.C. § 1125(a)) pursuant to 28 U.S.C. § 1338(a). 3. This Court has jurisdiction of the causes of action arising under California trade name law (under California Business & Professions Code § 14400 et seq.), and California unfair competition law (under California Business and Professions Code § 14210, 17200-17203) pursuant to 28 U.S.C. 1338(b). 4. Venue is proper in the federal district court where certain Defendants reside and where acts of trademark and copyright infringement occur. 28 U.S.C. 1391(b) and (c). Venue in the instant suit is proper in the Northern District of California. I. PRELIMINARY INJUNCTION A. Legal standard 5. Plaintiffs must demonstrate the following to be entitled to preliminary injunctive relief: (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that there exist serious questions regarding the merits and the balance of hardships tips sharply in their favor. Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987); Apple Computer, Inc. v. Formula Intern., Inc., 725 F.2d 521, 523 (9th Cir.1984). B. Probable Success on the Merits Copyright Infringement 6. To establish a prima facie case of copyright infringement, Plaintiffs must prove (1) ownership of a valid copyright in the infringed work, and (2) “copying” by the Defendants. See Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir.1977); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir.1982); 3 Nimmer on Copyright, § 13.01 (1985). 7. Sega’s certificates of registration establish a prima facie valid copyright in its video game programs. 17 U.S.C. § 410(c); Apple Computer, Inc. v. Formula Int’l Inc., 725 F.2d 521, 523 (9th Cir.1984). Although the complaint" }, { "docid": "10452079", "title": "", "text": "Ruxpin tape. Em-mick Dep. Tr. 21, 28; Daly Dep. Tr. 118. There is no evidence that the tapes may be used in any other animated toy. Although the tape may be played in a standard cassette player, the command track which controls Teddy Ruxpin’s movements then becomes superfluous. Clearly, the Veritel tapes were designed exclusively for use in Teddy Ruxpin. In sum, defendants have failed to overcome the presumption of the validity of plaintiff's copyright. In addition, the evidence indicates that Veritel’s tapes are derivative works which are substantially similar to W.O.W.’s tapes. Consequently, the court concludes that W.O.W. has demonstrated a substantial likelihood of success on the merits of its copyright infringement claim. In light of this conclusion, it is unnecessary to consider W.O.W.’s likelihood of success on its trademark infringement and unfair competition claims. C. Irreparable Harm A showing of a reasonable likelihood of success on the merits of a copyright infringement claim raises a presumption of irreparable harm. Apple Computer, Inc. v. Franklin Computer Corporation, 714 F.2d 1240, 1254 (3d Cir.1983), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984); Entertainment & Sports Programming Network, Inc. v. Edinburg Community Hotel, Inc., 623 F.Supp. 647, 656 (S.D.Tex.1985). Because W.O.W. has shown a reasonable likelihood of success on the merits of its copyright infringement claim, the court finds that it is entitled to a presumption of irreparable harm. Although defendants deny that W.O.W. will suffer immediate and irreparable harm if the injunction is denied, they offer no evidence to substantiate that position. Even without the benefit of this presumption, however, the court concludes that W.O.W. had demonstrated that it will suffer irreparable harm unless a preliminary injunction is granted. W.O.W. and Alchemy have invested millions of dollars to develop Teddy Ruxpin into a successful product. The World of Teddy Ruxpin has great commercial value in terms of sales of Teddy Ruxpin units, as well as the tapes, clothing and other plush toys associated with the line. In addition, sales of merchandise licenses are commercially valuable. Sales of the Veritel tapes undermine the carefully tailored image of" }, { "docid": "13225006", "title": "", "text": "no factual findings, is to reinsert the now-rejected presumption of irreparable harm based solely on a strong case of trademark infringement. Gone are the days when “[o]nce the plaintiff in an infringement action has established a likelihood of confusion, it is ordinarily presumed that the plaintiff will suffer irreparable harm if injunctive relief does not issue.” Rodeo Collection, Ltd. v. W. Seventh, 812 F.2d 1215, 1220 (9th Cir.1987) (citing Apple Computer, Inc. v. Formula International Inc., 725 F.2d 521, 526 (9th Cir.1984)). This approach collapses the likelihood of success and the irreparable harm factors. Those seeking injunctive relief must proffer evidence sufficient to establish a likelihood of irreparable harm. As in Flexible Lifeline, 654 F.3d at 1000, the fact that the “district court made no factual findings that would support a likelihood of irreparable harm,” while not necessarily establishing a lack of irreparable harm, leads us to reverse the preliminary injunction and remand to the district court. In light of our determination that the record fails to support a finding of likely irreparable harm, we need not address the balance of equities and public interest factors. REVERSED and REMANDED. . The Platters Biography, Rock & Roll Hall of Fame, http ://rockhall. com/inductees/the-platters/bio/ (last visited June 27, 2013). . The memorandum held that FPI and other plaintiffs \"cannot assert a common law trademark in 'The Platters’ ”■ unless they \"present evidence that they used the trademark in a way that was not false and misleading.” Five Platters, Inc. v. Powell, 7 Fed.Appx. 794, 795 (9th Cir.2001). The case was remanded for an evidentiary hearing, although the disposition noted that FPI was “unlikely” to be able to make the required showing. Id. & n. 6. On remand FPI abandoned the trademark claim and the evidentiary hearing never occurred. Marshak v. Reed, 229 F.Supp.2d 179, 182 n. 2, 184-85 (E.D.N.Y.2002) (\"Marshak II\") (describing the remand). . Marshak’s argument that HRE should have acted sooner to trigger the escape clause instead of waiting years until after FPI had become a defunct entity is inapposite. Mars-hak essentially seeks a roundabout way to raise a laches" }, { "docid": "16585339", "title": "", "text": "use defense, while the second factor only slightly weighs against its applicability, and the fourth is neutral. Under the aggregate of these factors, the Court finds that Video Pipeline will not be entitled to the defense of fair use. The Court finds that defendant BVHE has demonstrated, and plaintiff Video Pipeline has not refuted, that Video Pipeline has infringed upon BVHE’s copyrighted motion pictures in creating and providing video previews online to be accessed by its retailer clients’ customers. Video Pipeline has not demonstrated that it is not liable for copyright infringement due to the first sale doctrine under § 109 or the fair use defense under § 107. Accordingly, BVHE has demonstrated a prima facie case of copyright infringement, and has established a likelihood of success on the merits under the first prong of the preliminary injunction inquiry. B. Irreparable Harm to the Moving Party BVHE asserts that it is being irreparably harmed by the continuing acts of BVHE’s infringement. A copyright owner who establishes a prima facie case of infringement “is entitled to a preliminary injunction without a detailed showing of irreparable harm.” Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983) (citing 3 Nimmer on Copyright § 14.06[A], at 14-50 & n. 16 (collecting authorities)), cert. dismissed, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984). The Third Circuit states that the “prevailing view [is] that a showing of a prima facie case of copyright infringement or reasonable likelihood of success on the merits raises a presumption of irreparable harm.” Apple Computer, 714 F.2d at 1254 (citing cases). Because BVHE has established a prima facie case of copyright infringement, it is entitled to a presumption of irreparable harm, thereby satisfying the second factor in determining whether a preliminary injunction shall issue. C. Balancing of the Equities Plaintiff Video Pipeline asserts that it will be irreparably harmed if an injunction were to issue, stating that a preliminary injunction would “remove many previews of home video products from retailers who own lawful copies of the home videos and prevent them from effectively marketing them" }, { "docid": "13449294", "title": "", "text": "abused its discretion by failing to enjoin the AreCell and Aquarius products. Cadence asserts that the district court was obligated to enjoin the sale of the products once the court determined that Cadence was likely to succeed on the merits of its copyright claim. Discussion I. Standard of Review. A plaintiff seeking preliminary injunctive relief must demonstrate “either a likelihood of success on the merits and the possibility of irreparable injury[ ] or that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor.” Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir.1992). A district court’s preliminary injunction order will be reversed only if the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. See Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1334 (9th Cir.1995); Sega, 977 F.2d at 1517. II. The District Court Erred by Failing to Enjoin Sale of Avantl’s ArcCell and ArcCell XO Products. A. The District Court Erred by Finding that Avant! Had Rebutted the Presumption of Irreparable Injury. The district court recognized that a presumption of irreparable injury arises if the plaintiff is able to show a likelihood of success on the merits of its copyright infringement claim. The district court erred, howev er, by finding that Avant! had rebutted the presumption of irreparable injury. 1. A copyright infringement defendant cannot rebut the presumption of irreparable harm by showing that money damages are adequate. Cadence asserts that the district court erred because “it is well settled that the availability of money damages does not rebut the presumption of irreparable harm in copyright cases.” Cadence cites several appeals court decisions for support, including: Triad, 64 F.3d at 1335 (holding that the presumption of irreparable harm supported the district court’s preliminary injunction order); Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1174 (9th Cir.1989) (same); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3d Cir.1983) (holding that the district court erred when it failed to" }, { "docid": "16429686", "title": "", "text": "order to obtain preliminary injunctive relief, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir.2009) (quoting Winter, 555 U.S. 7, 129 S.Ct. 365, 374 (2008)). This is commonly referred to as the “four-factor test.” See, e.g., Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). Although Precision also argues that the district court erred in finding Flexible demonstrated a likelihood of success on the merits, the primary issue in this appeal is whether the district court used an erroneous legal standard by presuming irreparable harm in issuing injunctive relief. A. Presumption of Irreparable Harm We have long held that irreparable harm can be presumed in a copyright infringement case upon a showing of a likelihood of success on the merits by the copyright owner. Apple Computer, Inc. v. Formula Intern. Inc., 725 F.2d 521, 525 (9th Cir. 1984); see also Triad Sys. Corp. v. Se. Exp. Co., 64 F.3d 1330, 1335 (9th Cir.1995) (noting the general requirement of showing irreparable harm, but stating “[i]n a copyright infringement action, however, the rules are somewhat different. A showing of a reasonable likelihood of success on the merits raises a presumption of irreparable harm.”). Based on our precedent, the district court granted the preliminary injunction after finding a likelihood of success on the merits, without inquiring into whether Flexible would actually suffer any irreparable harm absent relief. Instead, the district court relied solely on the presumption of irreparable harm, citing our 2003 decision Elvis Presley, 349 F.3d 622. Precision objects, arguing that this circuit’s standard, as expressed in Elvis Presley and relied upon by the district court, has been effectively overruled by the Supreme Court. According to Precision, after the Supreme Court’s eBay and Winter decisions in 2006 and 2008, this circuit’s longstanding practice of presuming irreparable harm upon" } ]

[ { "docid": "12187824", "title": "", "text": "occupancy of Indians, although much of it has been acquired since the passage of the act of 1834, and notwithstanding the formal definition in that act has been dropped from the statutes.” The conclusion is not in conflict with the ruling in Bates v. Clark, because, as we have seen, Alaska was not described or included in the act of 1834, the same being at the time foreign territory, and for the further reason that, if it had been, congress has since made special and different provision concerning the intercourse therein between the aborigines and others. Nor do I think it is in conflict with the ruling in Ex parte Crow Dog, rightly understood. True, it is said in the opinion in the later case that the phrase may and does include territory acquired since the date of the act of 1834, and therefore not described in it. But the case then before the court arose in Dakota, a territory acquired from France in 1803, while the anomalous condition of Alaska was not probably considered by the court, or the language in question used with reference to it; but rather to the similar and contiguous territory acquired from Mexico in 1848, as New Mexico, Arizona, Nevada, Utah, and Western Colorado, which thereupon, in the language of section 1 of the act of 1834, (4 St. 729), defining or describing the Indian country, became and were included in “that part of the United States west of the Mississippi and not within the states of Missouri and Louisiana.” Nor is it at all probable that the aborigines of Alaska can or will be considered as dependent or domestic nations, or people having any title to the soil of the country, to be extinguished by the United States, as were the Indian tribes north and west of the Ohio river. The country was purchased from Russia in 1867. By article 2 of the treaty of purchase (Pub.Treat. 672) it is declared that “the cession of territory and dominion” thereby made, shall include “the right of property in all public lots and squares, vacant" } ]

[ { "docid": "18272518", "title": "", "text": "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. See United States v. John, 437 U.S. 634, 647-49, 98 S.Ct. 2541, 2548-2549, 57 L.Ed.2d 489 (1978). . Language in the Pretrial Order notwithstanding, it has long been held that exclusive federal criminal jurisdiction over Indians in “Indian country” includes all persons found to be “Indian” under federal law, see United States v. Broncheau, 597 F.2d 1260, 1262-64 (9th Cir. 1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1980), notwithstanding specific tribal membership or lack thereof. See e. g., id., at 1263; United States v. Indian Boy X, 565 F.2d 585, 594 (9th Cir. 1977), cert. denied 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139; United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974) vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938). The Ute Law and Order Code § 1-2-5 (1975), supra note 8, includes any federally recognized Indian within its subject-matter jurisdiction. . While strictly speaking, 18 U.S.C. § 1151 (1976) defines “Indian country” for the Federal Criminal Code, it is well-settled that its definition applies as well to questions of civil jurisdiction. DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084, 43 L.Ed.2d 300 (1975), accord, McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 177-78 n.17, 93 S.Ct. 1257, 1265, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 424 n.1, 91 S.Ct. 480, 481, 27 L.Ed.2d 507 (1971); Williams v. Lee, 358 U.S. 217, 220-22 nn. 5, 6, & 10, 79 S.Ct. 269," }, { "docid": "18272528", "title": "", "text": "meaningful that other rule is today. See Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 623-24 n. 12, 97 S.Ct. at 1381-1382 (J. Marshall, dissenting). . Both the Uintah Valley and the Uncompahgre Reservations were created by Executive Orders. . See e. g., United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913) (“Indian country” includes “dependent Indian communities”); United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914) (individual Indian trust allotments); Pronovost v. United States, 232 U.S. 487, 34 S.Ct. 391, 58 L.Ed. 696 (1914) (Indian reservation); United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938) (Reno Indian colony). . See United States v. John, 437 U.S. 634, 648-49 & n.18, 98 S.Ct. 2541, 2548-2549, 57 L.Ed.2d 489 (1978); text of section at note 13, supra. . The administrative process was often complicated by specific statutes that extended state jurisdiction within reservation boundaries. E. g., Louie v. United States, 274 F. 47, 49 (9th Cir. 1921). . The complex problems this Court has faced in evaluating the jurisdictional history of the Uintah and Ouray Indian Reservation only reaffirm the wisdom of an observation by Nathan Margold: [I]f the laws governing Indian affairs are viewed as lawyers generally view existing law, without reference to the varying times in which particular provisions were enacted, the body of the law thus viewed is a mystifying collection of inconsistencies and anachronisms. To recognize the different dates at which various provisions were enacted is the first step towards order and sanity in this field. Introduction, in F. Cohen, Handbook of Federal Indian Law xxviii (N.M. ed. 1971). . Compare e. g., Hatten v. Hudspeth, 99 F.2d 501 (10th Cir. 1938) with Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). . See Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (D.S.D.1974) affirmed, 521 F.2d 87 (8th Cir. 1975), affirmed, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977); DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300" }, { "docid": "8746865", "title": "", "text": "the Tract. At the time of Magnan’s crimes, the Tract remained in the possession of Kizzie’s heirs and their successors. b) The definition of “Indian country ” The term “Indian country,” for purposes of criminal jurisdiction, is defined, in 18 U.S.C. § 1151. See DeCoteau v. Dist. Cnty. Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (“While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.”). Section 1151 provides, in relevant part, that “the term ‘Indian country1 ... means ... (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” 18 U.S.C. § 1151(c). Section “1151(c) contemplates that isolated tracts of ‘Indian country’ may be scattered checkerboard fashion over a territory otherwise under state jurisdiction.” DeCoteau, 420 U.S. at 429 n. 3, 95 S.Ct. 1082. The Supreme Court has held, citing to this definition of “Indian country,” that “Federal and tribal courts have exclusive jurisdiction over those portions of the opened [Indian reservation] lands that were and have remained Indian allotments.” Solem v. Bartlett, 465 U.S. 463, 467 n. 8, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984). The Court has also held that “federal jurisdiction over the offenses covered by the Indian Major Crimes Act[, which include murder and assault with intent to commit murder,] is ‘exclusive’ of state jurisdiction.” Negonsott v. Samuels, 507 U.S. 99, 103, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993). ■c) Congress’s treatment of Indian allotments A series of federal statutes pertaining to Indian allotments bears on the status of the Tract at the time of the crimes at issue. To begin with, “the General Allotment Act [of 1887] provided for the division of tribal land into fee simple parcels owned by individual tribal members.” Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316, 331, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008). Specifically, the General Allotment Act provided that each allotted parcel would be held in" }, { "docid": "8746894", "title": "", "text": "approval of sales of lands must be made in triplicate on approved form Five Civilized Tribes, 5-484, and submitted to the superintendent for the Five Civilized Tribes or any field clerk. These forms will be furnished free of charge by the superintendent or field clerk. 25 C.F.R. § 121.34 (1970). Although this regulation did not expressly reference the 1945 Act, it clearly appears to have been intended to encompass sales of purchased interests in allotments. Notably, there is no suggestion by respondent, nor any evidence in the record indicating, that Kizzie or the Housing Authority complied \"with this regulation by filing an application for approval of the sale of the Tract to the Housing Authority. For these reasons, we conclude that the Secretarial approval requirement of the 1945 Act was not met and that Kizzie’s purchased interests in the Tract were never conveyed to the Housing Authority. In turn, we conclude that the Tract, at the time of Magnan’s crimes, was “Indian country,” and that exclusive jurisdiction over those crimes rests with the United States. See United States v. Pelican, 232 U.S. 442, 447-449, 34 S.Ct. 396, 58 L.Ed. 676 (1914) (holding that, for purposes of criminal jurisdiction, trust allotments retain during the trust period a distinctively Indian character and thus constitute “Indian couritry”); id. at 449-451, 34 S.Ct. 396 (emphasizing that, for purposes of determining the status of land as “Indian country,” there is no significant difference between a trust allotment and a restricted allotment); see also United States v. John, 437 U.S. 634, 654, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978) (holding that Indian Major Crimes Act provided a proper basis for federal prosecution of a crime occurring on lands held in trust by the federal government for the benefit of the Mississippi Choctaw Indians). Ill Because jurisdiction over Magnan’s crimes rests exclusively with the United States, rather than the State of Oklahoma, Magnan is “in custody in violation of the ... laws ... of the United States.” 28 U.S.C. § 2254(a); see generally O’Neal v. McAninch, 513 U.S. 432, 446, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)" }, { "docid": "1241629", "title": "", "text": "obviously, Indian country and its beneficial owners are “exempt from State and local taxation.” 25 U.S.C. § 465 para. 4. Indeed, tribal residents of Indian country are even exempt from motor vehicle and state income taxes. Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 127-28, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993); McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 165, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). More generally, Indian country is subject to federal and tribal jurisdiction in both civil and criminal matters. Native Vill. of Venetie, 522 U.S. at 527 & n. 1, 118 S.Ct. 948 (civil); DeCoteau v. Dist. County Court for the Tenth Judicial Dist., 420 U.S. 425, 428 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (civil); see United States v. John, 437 U.S. 634, 649, 654, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978) (reversing state conviction for a crime committed on trust land). A state “presumptively lacks jurisdiction to enforce” its regulations in Indian country. Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F.3d 908, 915 (1st Cir.1996). A tribal sovereign ousts a state, unless Congress expressly provides otherwise. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). These consequences result not from other statutes, as the majority claims, Maj. Op. at 32-33, but from the “attributes of sovereignty” that “Indian tribes retain.” Id. at 207, 107 S.Ct. 1083; see also Okla. Tax Comm’n, 508 U.S. at 128, 113 S.Ct. 1985, Surely we need not avert our gaze from the constitutional backdrop against which Congress legislates. Thus, § 5 allows the Secretary, by taking land in trust for Indians, to oust state jurisdiction in favor of government by the beneficiaries he chooses. Although there are certain limits on the scope of this power, such as the restriction that land may only be held “for Indians,” they are not nearly narrow enough to validate a standardless delegation. By comparison to the EPA’s authority to define country elevators, the § 5 power is astoundingly broad. While the EPA was allowed to" }, { "docid": "18272527", "title": "", "text": "in Celestine as well as a revealing comment in Clairmont v. United States, 225 U.S. 551, 32 S.Ct. 787, 56 L.Ed. 1201 (1912), at 558-59, 32 S.Ct. at 789: But, as was pointed out in Bates v. Clark, supra, . .. “When the Indian title is extinguished it ceases to be Indian country, unless some such [statutory] reservation takes it out of the rule.” The same principle of decision was recognized in Dick v. United States, 208 U.S. 340, 28 S.Ct. 399, 52 L.Ed. 520. [Emphasis added.] The Court in Clairmont makes no reference to “full and complete” state jurisdiction or to the termination of reservation status in defining “Indian country” under the liquor laws. Continuing reservation status and state jurisdiction were not necessarily inconsistent. See e. g., Louie v. United States, 274 F. 47, 49 (9th Cir. 1921). That extinguishment of Indian title defined “Indian country” in 1910 renders it difficult for this Court to infer that Congress was aware of any other controlling principles in dealing with the Sioux, or the Utes, however meaningful that other rule is today. See Rosebud Sioux Tribe v. Kneip, supra, 430 U.S. at 623-24 n. 12, 97 S.Ct. at 1381-1382 (J. Marshall, dissenting). . Both the Uintah Valley and the Uncompahgre Reservations were created by Executive Orders. . See e. g., United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913) (“Indian country” includes “dependent Indian communities”); United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914) (individual Indian trust allotments); Pronovost v. United States, 232 U.S. 487, 34 S.Ct. 391, 58 L.Ed. 696 (1914) (Indian reservation); United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938) (Reno Indian colony). . See United States v. John, 437 U.S. 634, 648-49 & n.18, 98 S.Ct. 2541, 2548-2549, 57 L.Ed.2d 489 (1978); text of section at note 13, supra. . The administrative process was often complicated by specific statutes that extended state jurisdiction within reservation boundaries. E. g., Louie v. United States, 274 F. 47, 49 (9th Cir. 1921). . The complex" }, { "docid": "7797263", "title": "", "text": "are \"Indian country” and the equivalent of tribal land for jurisdictional purposes); DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (\"While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.”). . In fact, the tribal court amended the state court’s warrant of August 30, 1990, and restricted its scope “to exterior premises only and to vehicles thereon.... ” . Though all of the land at issue in Brendale was non-Indian fee land, some of the land was within the “closed” portion of the reservation to which the tribe would limit access. Three justices would have found the tribe had inherent authority to zone all reservation land. Four justices would have found no authority under Montana to zone non-Indian fee land whether or not the tribe controlled access to the land. Justices Stevens and O’Connor, the deciding votes, held the zoning power of the tribe depends on its ability to control access to the land. . The Supreme Court denied certiorari in Ñamen over the dissent of Justices Rehnquist and White, who hinted that they believed the tribes had no regulatory authority over nonmembers even when acting on Indian land. See 459 U.S. 977, 978-79, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982) (Rehnquist, C.J. and White, J., dissenting from denial of certiora-ri). . We note that attempting to enforce the state's criminal laws against a tribal member on the Reservation directly implicates the sovereignty of the Tribe. See Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir.1969), cert. denied, 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970) (holding that the arrest of a Navajo Indian on the reservation for extradition pursuant to Arizona law to another state “would clearly interfere with rights essential to the Navajo’s self-government”) (citing Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)); see also Strate v. A-1 Contractors, 520 U.S. at 459, 117 S.Ct. 1404 (1997) (recognizing an exception to" }, { "docid": "11668673", "title": "", "text": "“temporary” has acquired special meaning in United States Attorney General and Interior Department opinions which were based on dicta in a Supreme Court case, U. S. v. Midwest Oil, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1914). In the Navajos’ view, executive order withdrawals made to preserve a status quo until Congress can act are “temporary”, and executive order withdrawals made for public purposes where no legislative action is contemplated are “permanent”. The district court rejected this suggestion firmly. Its reasoning is persuasive. The overriding purpose of the 1934 Act repudiates the Navajos’ interpretation. To consolidate reservation ownership it was necessary to change the status of reservation land title from a “tenancy at will to a permanent compensable interest”. The proposed distinctions were developed by agency officials to justify executive withdrawals that would otherwise have conflicted with legislation. There is no reason to think that Congress approved this device or adopted this usage. If Congress had intended such a technical usage it might have said so clearly. Finally, it is argued that “temporary withdrawals” must be construed not to apply to withdrawals made expressly for Navajos. The Navajos maintain that once lands are reserved for Indians, any subsequent grant purporting to affect those lands must be strictly construed. Leavenworth, etc., R.R. Co. v. U. S., 92 U.S. 733, 746, 23 L.Ed. 634 (1876); Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). The cited cases all involved assertions that Congress had withdrawn land from Indian reservation status, hence its status as “Indian country”. See 18 U.S.C. § 1151. Among other things such a result would have terminated federal and tribal jurisdiction, both civil and criminal. 18 U.S.C. § 1151; DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084 n.2, 43 L.Ed.2d 300 (1975). In view of these drastic results, a congressional intention to terminate is not to be inferred unless it is “expressed on the face of the Act or . clear from the surrounding circumstances" }, { "docid": "1241628", "title": "", "text": "section applicable to grain elevators shall not apply to country elevators (as defined by the Administrator) which have a storage capacity of less than two million five hundred thousand bushels.”). By contrast, the § 5 power is quite broad. The majority blandly characterizes it as the power to grant status as Indian country, but the majority ignores the far-reaching consequences of that status. By taking land in trust for Indians, the Secretary removes it from the jurisdiction of the State in which it sits and places it under the authority of a tribe. Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 529-31, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998) (noting federal land held in trust for Indians is Indian country (citing United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938))). Thus, the trust acquisition authority is a power to determine who writes the law, and thus indirectly what the law will be, for particular plots of land. The consequences of the Indian country designation are profound. Most obviously, Indian country and its beneficial owners are “exempt from State and local taxation.” 25 U.S.C. § 465 para. 4. Indeed, tribal residents of Indian country are even exempt from motor vehicle and state income taxes. Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 127-28, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993); McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 165, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973). More generally, Indian country is subject to federal and tribal jurisdiction in both civil and criminal matters. Native Vill. of Venetie, 522 U.S. at 527 & n. 1, 118 S.Ct. 948 (civil); DeCoteau v. Dist. County Court for the Tenth Judicial Dist., 420 U.S. 425, 428 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (civil); see United States v. John, 437 U.S. 634, 649, 654, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978) (reversing state conviction for a crime committed on trust land). A state “presumptively lacks jurisdiction to enforce” its regulations in Indian country. Narragansett Indian Tribe v. Narragansett Elec. Co., 89" }, { "docid": "2262916", "title": "", "text": "question without permission of the Secretary or by lawful condemnation proceedings. Nowhere in the opinion, however, was the effect of the Act of May 27, 1910, considered. It is undisputed in the instant case that the Act of 1889 retained Bennett County within the confines of the Pine Ridge Indian Reservation. Thus, we find the quoted statement in. Bennett County v. United States, supra, not to be controlling here. We hold that Bennett County, South Dakota, was severed from the Pine Ridge Indian Reservation by the Act of May 27, 1910, and became part of* the public domain and the State of South Dakota. Accordingly, South Dakota had jurisdiction to try petitioner Cook for criminal acts occurring on non-Indian land within Bennett County. Affirmed. . Appellant is an enrolled member of the Concow and Redwood Tribe of California Indians. . It is conceded that the crime committed by appellant did not occur on Indian allotments within Bennett County. . See DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). . For authority that such history may be considered in cases of this type see DeCoteau v. District County Court, 420 U.S. 425, 445-446, 95 S.Ct. 1082, 45 L.Ed.2d 300 (1975); Rosebud Sioux Tribe v. Kneip, 521 F.2d 87 at 90 n. 7 (8th Cir., filed July 16, 1975). . The Rosebud Act uses the phrase “sell or dispose” whereas the Pine Ridge Act uses “sell and dispose.” (Emphasis added). See Rosebud Sioux Tribe v. Kneip, supra, at 108. See also DeCoteau v. District County Court, 420 U.S. 425, 439-440 n. 22, 95 S.Ct. 1082, 45 L.Ed.2d 300 (1975). A similar operative section using the phrase “to sell and dispose of” was found in the Act of June 1, 1910, 36 Stat. 455, which was considered by this court in New Town v. United States, 454 F.2d 121 (8th Cir. 1972). We held in New Town that the boundaries of the Fort Berthold Reservation, as established in 1891, were not altered by the 1910 Act. However, subsequent provisos in that Act indicated" }, { "docid": "18272519", "title": "", "text": "585, 594 (9th Cir. 1977), cert. denied 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139; United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974) vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); Ex parte Pero, 99 F.2d 28, 30 (7th Cir. 1938). The Ute Law and Order Code § 1-2-5 (1975), supra note 8, includes any federally recognized Indian within its subject-matter jurisdiction. . While strictly speaking, 18 U.S.C. § 1151 (1976) defines “Indian country” for the Federal Criminal Code, it is well-settled that its definition applies as well to questions of civil jurisdiction. DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084, 43 L.Ed.2d 300 (1975), accord, McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 177-78 n.17, 93 S.Ct. 1257, 1265, 36 L.Ed.2d 129 (1973); Kennerly v. District Court of Montana, 400 U.S. 423, 424 n.1, 91 S.Ct. 480, 481, 27 L.Ed.2d 507 (1971); Williams v. Lee, 358 U.S. 217, 220-22 nn. 5, 6, & 10, 79 S.Ct. 269, 270-271, 3 L.Ed.2d 251 (1958). . By its terms, the preliminary injunction was narrower in scope than was the TRO; the defendants, their officers, employees, etc., were restrained from “exercising or assuming any form of criminal or civil jurisdiction based on the case Brough v. Appawora, or otherwise, ... pending a final determination of this action, ...” . In this Opinion, documents shall be both described specifically and referred to by their assigned exhibit numbers to avoid confusion. The 485 joint exhibits of the parties shall be cited as “JX [number].” The documents included in the Joint Compendium of Legislative Documents shall be cited as “LD [number].\" Other documents, items, etc. shall be assigned similar designations, e. g., such as those found in defendant’s first request for admissions. “DFRA [number].” . See Deloria, “Indian Law and the Reach of History,” 4 J.Contemp.L. 1 (1977). In Mohegan Tribe v. State of Connecticut, 638 F.2d 612 (2d Cir. 1981), the United States Court of Appeals for the Second Circuit commented: As the Supreme Court has noted with" }, { "docid": "11668674", "title": "", "text": "withdrawals” must be construed not to apply to withdrawals made expressly for Navajos. The Navajos maintain that once lands are reserved for Indians, any subsequent grant purporting to affect those lands must be strictly construed. Leavenworth, etc., R.R. Co. v. U. S., 92 U.S. 733, 746, 23 L.Ed. 634 (1876); Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). The cited cases all involved assertions that Congress had withdrawn land from Indian reservation status, hence its status as “Indian country”. See 18 U.S.C. § 1151. Among other things such a result would have terminated federal and tribal jurisdiction, both civil and criminal. 18 U.S.C. § 1151; DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084 n.2, 43 L.Ed.2d 300 (1975). In view of these drastic results, a congressional intention to terminate is not to be inferred unless it is “expressed on the face of the Act or . clear from the surrounding circumstances and legislative history.” Mattz v. Arnett, supra, 412 U.S. at 505, 93 S.Ct. at 2258. No intent to terminate need be shown here because there has been no termination. No one contends that the 1934 Act withdrew the Reservation from Indian country. The federal government’s jurisdiction and trust obligations remain intact. See, e. g., 25 U.S.C. § 631 et seq. Far from terminating prior executive order reservations, the 1934 Act reinforces them by recognizing and confirming Indian title. Assuming an executive order could create an exclusive right of occupancy in one tribe versus another, it is important “to have in mind the circumstances in which the reservation was created”. Alaska Pacific Fisheries v. U. S., 248 U.S. 78, 87, 39 S.Ct. 40, 41, 63 L.Ed. 138 (1918). See also U. S. v. Walker River Irr. Dist., 104 F.2d 334, 336 (9th Cir. 1939). Where two tribes have intermingled in the pattern shown here, we cannot blandly assume the executive has divested the indigenous tribe. The Navajos do not convincingly show that such was the executive’s" }, { "docid": "12133273", "title": "", "text": "Oklahoma licenses and regulates but does not prohibit bingo. See Okla.Stat. tit. 21, §§ 995.1-995.18 (1981 & Supp.1986). It does, however, prohibit high-stakes commercial bingo. See Brief of Appellants, at 26. Neither the Creek Nation nor ICUSA has obtained a state bingo license for Creek Nation Bingo, which does not purport to operate in compliance with state law. The enterprise also does not collect state sales tax on bingo ticket sales nor on concessions or other sales. II. THE MACKEY SITE AS INDIAN COUNTRY The district court concluded that the Mackey site, on which Creek Nation Bingo is located, is “Indian country”, as defined in 18 U.S.C. § 1151(a) (1982). Section 1151 defines Indian country to include “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation.” Id. § 1151(a). Although section 1151 by its terms defines Indian country for purposes of determining federal criminal jurisdiction, the classification generally applies to questions of both civil and criminal jurisdiction. See Cabazon, 107 S.Ct. at 1087 n. 5. Numerous cases confirm the principle that the Indian country classification is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands. See, e.g., id.; Solem v. Bartlett, 465 U.S. 463, 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984); DeCoteau v. District County Court, 420 U.S. 425, 427-28 & n. 2, 95 S.Ct. 1082, 1084 & n. 2, 43 L.Ed.2d 300 (1975); Kennerly v. District Court, 400 U.S. 423 (1971); Cheyenne-Arapaho Tribes of Oklahoma v. Oklahoma, 618 F.2d 665 (10th Cir.1980); see also Cohen’s Handbook of Federal Indian Law 27-46 (R. Strickland ed. 1982) [hereinafter Cohen’s Handbook] (“Indian country” usually the governing legal term for jurisdictional purposes); F. Cohen, Handbook of Federal Indian Law 5-8 (1942) (“Indian country” generally determines allocation of tribal, federal, and state authority). We note that the Supreme Court of Oklahoma has also recognized the importance of this classification: “The touchstone for allocating authority among the various" }, { "docid": "8486262", "title": "", "text": "U.S. 634, 649, 98 S.Ct. 2541, 2549, 57 L.Ed.2d 489 (1978)). The district court held that, regardless of the source of the restraint against alienation, the requirement that the UKB obtain the approval of the federal government prior to disposing its land did not mean that the federal government had set aside the land for the UKB or agreed to serve as superintendent of the land. It therefore concluded that the UKB’s land was not Indian country, and the UKB was not entitled to injunctive relief prohibiting Oklahoma from enforcing its tobacco taxes. II. STANDARD OF REVIEW A district court’s grant of summary judgment is reviewed de novo. Housing Authority v. U.S., 980 F.2d 624, 628 (10th Cir.1992). III. DISCUSSION For purposes of both civil and criminal jurisdiction, the primary definition of Indian country is 18 U.S.C. § 1151. See Indian Country, U.S.A., Inc. v. Oklahoma Tax Comm’n, 829 F.2d 967, 973 (10th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988). Section 1151 defines Indian country to include: (1) land within the limits of any Indian reservation, 18 U.S.C. § 1151(a); (2) dependent Indian communities, id. § 1151(b); and (3) Indian allotments, the Indian titles to which have not been extinguished, id. § 1151(c). In addition the Supreme Court has held that Indian country includes land “ ‘validly set apart for the use of the Indians as such, under the superintendency of the Government.’ ” Potawatomi Indian Tribe, 498 U.S. at 511, 111 S.Ct. at 910 (quoting John, 437 U.S. at 649, 98 S.Ct. at 2549). Applying this test, the Court has concluded that Indian country includes land designated as an “Indian colony,” U.S. v. McGowan, 302 U.S. 535, 539, 58 S.Ct. 286, 288, 82 L.Ed. 410 (1938), and land held in trust by the United States for the use of an Indian tribe, Potawatomi Indian Tribe, 498 U.S. at 511, 111 S.Ct. at 910. In McGowan the Supreme Court held that the Reno Indian Colony had been set apart by the government for the use of Indians because it had been purchased by the" }, { "docid": "8746864", "title": "", "text": "Oklahoma, be and the same is hereby ratified, confirmed and approved and for the purpose of identification the Court has endorsed upon the said deed the following, to-wit: “Examined and approved in open Court this 16th day of April, 1970. Frank H. Seay Judge of the District Court” and the said Petitioners and Grantors are hereby directed to deliver said deed to said Grantee as a valid approved deed by this Court conveying said above described land. Id. at 3-4. The Housing Authority proceeded to build a house on the Tract (the house where the crimes at issue in this case occurred). And, in turn, Kizzie and her husband apparently made the requisite payments to the Housing Authority. In 1981, the Housing Authority executed a quit claim deed conveying its interest in the Tract back to Kizzie and her husband. Tr. of Evid. Hr’g at 50 (testimony of Allen Woodcock). Kizzie died on September 23, 1991. Kiz-zie’s husband received a % interest in the Tract. Kizzie’s nine children each re ceived a l/18th interest in the Tract. At the time of Magnan’s crimes, the Tract remained in the possession of Kizzie’s heirs and their successors. b) The definition of “Indian country ” The term “Indian country,” for purposes of criminal jurisdiction, is defined, in 18 U.S.C. § 1151. See DeCoteau v. Dist. Cnty. Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (“While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.”). Section 1151 provides, in relevant part, that “the term ‘Indian country1 ... means ... (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” 18 U.S.C. § 1151(c). Section “1151(c) contemplates that isolated tracts of ‘Indian country’ may be scattered checkerboard fashion over a territory otherwise under state jurisdiction.” DeCoteau, 420 U.S. at 429 n. 3, 95 S.Ct. 1082. The Supreme Court has held, citing to this definition of “Indian country,” that “Federal" }, { "docid": "7797262", "title": "", "text": "that tribal court lacked jurisdiction over challenge to county taxation of fee lands within reservation) for the proposition that unless one of the Montana exceptions apply, tribal courts do not have jurisdiction over nonmembers. See dissent at 1032-34. Judge Canby's Discussion, However, Emphasizes The Fact That Yellowstone County was decided before the Supreme Court's decision in Strate, and that Pease involved claims against nonmembers that arose outside the reservation. See, e.g., William C. Canby, Jr., American Indian Law 193-195 (1998). Pease, therefore, is inappo-site here. . It is undisputed that Hicks' residence lies within the Reservation on an allotment held in trust for him by the federal government. Allotments are former tribally held lands that were divided by order of Congress in 1887 into small farm-sized tracts to be held by individuals. See Canby, at 270 (1988). For jurisdictional purposes, allotments are considered \"Indian country.\" See 18 U.S.C. § 1151; see also Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 123, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993) (holding that trust allotments are \"Indian country” and the equivalent of tribal land for jurisdictional purposes); DeCoteau v. District County Court, 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (\"While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction.”). . In fact, the tribal court amended the state court’s warrant of August 30, 1990, and restricted its scope “to exterior premises only and to vehicles thereon.... ” . Though all of the land at issue in Brendale was non-Indian fee land, some of the land was within the “closed” portion of the reservation to which the tribe would limit access. Three justices would have found the tribe had inherent authority to zone all reservation land. Four justices would have found no authority under Montana to zone non-Indian fee land whether or not the tribe controlled access to the land. Justices Stevens and O’Connor, the deciding votes, held the zoning power of the tribe depends on its ability" }, { "docid": "13829912", "title": "", "text": "issue which is here being considered. They have no minimal standing to try to strip the Tribes of their land. This present action does not seek to interfere with the mentioned cities and counties. These are individual modifications but they go no further than the two counties and the two cities within the counties. Once again the State of Utah has also fully endorsed the position of the Tribe in this case. The State of Utah chose to submit the trial court’s opinion as its brief rather than make “unsupportable arguments” against that decision. What is at stake then in this appeal is jurisdiction, civil, criminal, regulatory and taxation, over Indians and over non-Indians who have transactions with Indians in the disputed lands, together with the authority of the United States to administer the area and part of the Uintah Reservation. See DeCoteau v. District County Court, 420 U.S. 425, 427 n. 1, 95 S.Ct. 1082, 1084 n. 1, 43 L.Ed.2d 300 (1975). Indian country has been defined as dependent Indian communities; the State of Utah may have had jurisdiction over the predominantly non-Indian communities of Duchesne and Roosevelt even though, in the trial court’s decision, they would be geographically located within the Uintah Reservation. 18 U.S.C. § 1151(b) (1976); Weddell v. Meierhenry, 636 F.2d 211, 213 (8th Cir.1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981). The important point is that, other than the two cities and counties mentioned, the remainder of the property that is in dispute here has had continuous recognition as Indian country and it continues to be so recognized. The majority opinion also recognizes that the Indians who reside in this area have certain claims, even though some of them are not members of the Uintah Tribe, but the Tribal members have claims to tracts for grazing, etc. The allotments made to individual Indians totals about 360,000 acres. There are about 217,000 acres which have been restored to the Indians in 1940. A fact that is recognized by the trial court is that the Hill Creek extension of about 500,000 acres" }, { "docid": "7676353", "title": "", "text": "jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Id.; see also DeCoteau v. Dist County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (collecting cases and stating that “[w]hile § 1151 is concerned, on its face, only with criminal jurisdiction, the [Supreme] Court has recognized that it generally applies as well to questions of civil jurisdiction”); Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 153 n. 11 (2d Cir.2003), rev’d on other grounds, — U.S. -, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). And Native Americans transacting business outside of Indian country can be subject to state regulation. In Mescalero, the Supreme Court held that New Mexico could impose a tax on the gross receipts of a ski resort, operated by the Mescalero Apache Tribe, that was located outside of the boundaries of the tribe’s reservation. Mescalero, 411 U.S. at 146-50, 93 S.Ct. 1267. The Court stated that “[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiserimi-natory state law otherwise applicable to all citizens of the State.” Id. at 149-50, 93 S.Ct. 1267. Here, Grand River states in its complaint that it is a “Canadian limited liability company that is owned by Native North Americans[, the Six Nations or Iroquois Confederacy],” and that it “operates and is located on tribal land in Ontario, Canada.” Compl. ¶ 26. Although the Iroquois Confederacy reservation includes land in both the United States and Canada, Grand River itself operates only on land that is outside of the United States. Thus, the activities of Grand River in Canada are no different than the off-reservation activities in Mescalero. The fact that the" }, { "docid": "7676352", "title": "", "text": "provides that “Congress shall have Power ... To regulate Commerce ... with the Indian Tribes.” U.S. const, art. I, § 8, cl. 3. “[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.” Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989). And the Indian Commerce Clause’s grant of authority to the federal government, and preemption of state authority, extends only to activities occurring in “Indian country,” i.e., Indian lands within the territory of the United States. See 18 U.S.C. § 1151; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); cf. Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 458-59, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995). Section 1151 of Title 18 of the United States Code makes clear that “Indian country” is limited to territory within the United States, defining it as: (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Id.; see also DeCoteau v. Dist County Court for Tenth Judicial Dist., 420 U.S. 425, 427 n. 2, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975) (collecting cases and stating that “[w]hile § 1151 is concerned, on its face, only with criminal jurisdiction, the [Supreme] Court has recognized that it generally applies as well to questions of civil jurisdiction”); Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 153 n. 11 (2d Cir.2003), rev’d on other grounds, — U.S. -, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). And Native Americans transacting business outside of Indian country can be subject to state regulation. In Mescalero, the" }, { "docid": "23516599", "title": "", "text": "of this Court has ever drawn the distinction between tribal trust land and reservations that Oklahoma urges.... We [have] stated that the test for determining whether land is Indian country does not turn upon whether that land is denominated “trust land” or “reservation.” Rather, we ask whether the area has been “ ‘validly set apart for the use of the Indians as such, under the superintendence of the Government.’ ” Id. (citing United States v. John, 437 U.S. 634, 650, 98 S.Ct. 2541, 57 L.Ed.2d 489 (1978) (Major Crimes Act provides a proper basis for federal prosecution of a crime occurring on lands held in trust by the federal government for the benefit of the Mississippi Choctaw Indians)) ; see also Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 453 n. 2, 115 S.Ct. 2214, 132 L.Ed.2d 400 (1995) (Oklahoma may not apply its motor fuels tax to fuel sold by the tribe in Indian Country and “ ‘Indian country’ as Congress comprehends that term, see 18 U.S.C. § 1151, includes formal reservations and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.”); Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114, 123, 113 S.Ct. 1985, 124 L.Ed.2d 30 (1993) (“Our cases make clear that a tribal member need not live on a formal reservation to be outside the State’s taxing jurisdiction; it is enough that the member live in Indian Country. Congress has defined Indian country broadly to include formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.”). Applying these Supreme Court cases, we believe official “reservation” status is not dispositive and lands owned by the federal government in trust for Indian tribes are Indian Country pursuant to 18 U.S.C. § 1151. See Cheyenne-Arapaho Tribes v. State of Oklahoma, 618 F.2d 665, 668 (10th Cir.1980) (state hunting and fishing laws do not apply on trust lands located within a disestablished reservation because “lands held in trust by the United States for the Tribes are Indian Country" } ]

[ { "docid": "17942526", "title": "", "text": "261, 265-66 (Bankr.E.D.Tex.1991); and In re Goldstein, 123 B.R. 514, 522 n. 15 (Bankr.E.D.Pa.1991). As is stated in Burch v. Reading Co., 240 F.2d 574, 579 (3d Cir.), cert. denied, 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914 (1957), when the standard of proof is the “preponderance of the evidence,” the plaintiff’s burden is to convince [the factfinder] upon all the evidence before [it] that the facts asserted by the plaintiff are more probably true than false ... [the factfinder] must at least be convinced that the evidence considered as a whole, its “preponderance” to use the traditional term, indicates that the facts asserted by the plaintiff are probably true. 2. 11 U.S. C. § 727(a)(2) As we noted in Goldstein, supra, 123 B.R. at 522, and as is consistently reflected in case law in this jurisdiction, objections to discharge are construed strictly against the objector and in favor of the debtor. See In re Leichter, 197 F.2d 955, 959 (3rd Cir.1952), cert. denied sub nom. Dworsky v. Leichter, 344 U.S. 914, 73 S.Ct. 336, 97 L.Ed. 705 (1953); In re Latimer, 82 B.R. 354, 359 (Bankr.E.D.Pa.1988); In re Garcia, 88 B.R. 695, 702 (Bankr.E.D.Pa.1988); In re Somerville, 73 B.R. 826, 833 (Bankr.E.D.Pa.1987); and In re Woerner, 66 B.R. 964, 971 (Bankr.E.D.Pa.1986), aff'd, C.A. 86-7324 (E.D.Pa. April 28, 1987). Such treatment reflects this court’s recognition that “[p]ublic policy requires that objections to discharge not be easily granted.” Somerville, supra, 73 B.R. at 833, citing Woerner, supra, 66 B.R. at 971. To succeed in her cause of action based upon either prong of § 727(a)(2), the Plaintiff must prove, by a preponderance of the evidence that there has been (1) a transfer, removal, destruction, mutilation, or concealment, (2) involving property of (a) the debtor, one year prior to the filing of the petition or (b) the estate, after the filing, (3) whereby the debtor intends to hinder, delay, or defraud a creditor. In re Bernat, 57 B.R. 1009, 1012 (E.D.Pa.1986). See also In re Chastant, 873 F.2d 89, 90-91 (5th Cir.1989); Latimer, supra, 82 B.R. at 360; and In re" } ]

[ { "docid": "22026080", "title": "", "text": "most basic of the § 523(a)(2)(B) criteria, and any such claim must therefore fail. In summary, the Plaintiffs attempts to append § 523(a)(2) claims to the Complaint were clearly ill-advised, both procedurally and substantively. In the final analysis, the weakness of these claims does no more than suggest the Plaintiffs discomfiture with the merit of his initial § 727(a)(4)(A) claim. 2. THE PLAINTIFF IS UNABLE TO SUFFICIENTLY ESTABLISH THAT THE DEBTOR’S FALSE STATEMENTS REGARDING HIS ROLE AT S&S WERE MATERIAL TO HIS CASE OR WERE MADE FRAUDULENTLY. In light of the foregoing rulings, all that remains of the Proceeding is the Plaintiffs original claim, based solely upon 11 U.S.C. § 727(a)(4)(A),'which reads as follows: § 727. Discharge (a) The court shall grant the debtor a discharge, unless— (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; ... As this court has stated in the past, to establish a § 727(a)(4)(A) claim, the Plaintiff must demonstrate that (1) a false oath or statement was made by the Debtor, (2) knowingly and fraudulently, (3) which was material to the course of the bankruptcy case. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991); and In re Woerner, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D.Pa. April 28, 1987). See also In re Staffieri, 1994 WL 463978, at *3-*4 (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obermayer, Rebmann, Maxwell & Hippel v. Staffieri, supra; In re Freedman, 1994 WL 455030 (Bankr.E.D.Pa. Aug. 19, 1994), aff'd, 1995 WL 118217 (E.D.Pa. March 9, 1995); and In re Ok Cha Nam, 1993 WL 541135, at *6-*7 (Bankr.E.D.Pa. May 19, 1993), aff'd, 1995 C.A. No. 94-5439 (E.D.Pa. May 1, 1995), aff'd, 77 F.3d 463 (3d Cir.1996). A false oath or statement is “material” if it “concerns discovery of assets, business transactions, and/or past business dealings of the debtor or the existence or disposition of the debtor’s property.” Henderson, supra, 134 B.R. at 160. “Matters so trivial in nature as to have but little effect upon the estate and upon creditors have been treated as" }, { "docid": "4558129", "title": "", "text": "a Chapter 7 discharge. I turn now to each of those in turn. “Congress described § 727’s discharge provision as the heart of the fresh start provisions of the bankruptcy law.” Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993) (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977)). As a result, bankruptcy courts must construe the provision liberally in favor of the debt- or. Id.; see also In re Burgess, 955 F.2d 134, 136 (1st Cir.1992); In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). Ultimately, the death knell of a denial of discharge is a severe sanction and must be “considered with great care.” In re Yanni, 354 B.R. 708, 711 (Bankr.E.D.Pa.2006). Procedurally, it is the Plaintiffs burden to prove an objection to discharge by a preponderance of the evidence. See Grogan, 498 U.S. at 289, 111 S.Ct. 654 (Congress instructed that the standard of proof under § 727 is preponderance of the evidence). i. Count Two, Denial of Discharge Under 727(a)(2) The first § 727 claim seeks to deny the Debtor a discharge pursuant to subsection (a)(2)(A). Section 727(a)(2)(A) allows for a denial of discharge when: the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; 11 U.S.C. § 727(a)(2)(A) (emphasis added). Under this provision, a plaintiff has the burden of proving: (1) a transfer or concealment of property; (2) that belonged to the debtor; (3) that occurred within one year of the petition date; and, (4) that was undertaken with actual intent to hinder, delay, or defraud one or more creditors or the bankruptcy trustee. Rosen, 996 F.2d at 1531; United States Trustee v. Zimmerman (In re Zimmerman), 320 B.R. 800, 806 (Bankr.M.D.Pa.2005). Elements 1 and 3 were proven by the Plaintiff at trial. Debtor transferred the numerous items out of Plaintiffs house with the" }, { "docid": "13676025", "title": "", "text": "Plaintiff seeks denial of Debtor’s discharge under § 727(a)(2)(A). Completely denying a debtor his discharge is an extreme step and should not be taken lightly. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). The discharge provision in § 727 is at the “heart of the fresh start provisions of the bankruptcy law.” Id. citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977), U.S.Code Cong. & Admin.News 1978, 5963, 6340. The section is to be liberally construed in favor of the debtor. Id. Section 727(a)(2)(A) reads in relevant part: “(a) The court shall grant the debtor a discharge, unless— ... (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed.... (A) property of the debtor, within one year before the date of the filing of the petition; .” 11 U.S.C. § 727(a)(2)(A) (West 2002). Therefore, in order to bar a debtor’s discharge under § 727(a)(2)(A), the plaintiff must prove each the following four elements by a preponderance of the evidence: (1) the debtor transferred, removed or mutilated, (2) his or her property, (3) within one year of the bankruptcy petition’s filing, (4) with the actual intent to hinder, delay, or defraud a creditor. See Rhode Island Depositors Econ. Prot. Corp. v. Hayes (In re Hayes), 229 B.R. 253, 259 (1st Cir. BAP 1999); Rosen, 996 F.2d at 1530-31; Bank of Chester County v. Cohen (In re Cohen), 142 B.R. 720, 725-26 & 728 (Bankr.E.D.Pa.1992); Carter Eng’g Co. Inc. v. Carter (In re Carter), 236 B.R. 173, 182 (Bankr.E.D.Pa.1999). The requisite actual intent to hinder, delay or defraud must exist at the time of the transfer. Carter, 236 B.R. at 182. The first and third elements of the test have clearly been met. There is no dispute that the prepayment of the Note occurred within one year prior to the filing of Debtor’s chapter 7 petition. Similarly, there is no dispute that some unproven amount of the proceeds of that Note prepayment, however they' came to be" }, { "docid": "8012123", "title": "", "text": "the circumstances of the case; (4) the debtor knowingly and fraudulently, in or in connection with the ease— (A) made a false oath or account; ... (5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities; (б) the debtor has refused, in the case— (A) to obey any lawful order of the court, other than an order to respond to a material question or to testify; ... We will concentrate our discussion on § 727(a)(4)(A) because we find that a decision in the Plaintiffs favor on the basis of this Code section is warranted, and this decision renders any further discussions unnecessary. Since the parties become perhaps excessively fixated on the encyclopedic discharge/dischargeability analyses contained in the Blanchard decision, we will begin by quoting several pertinent principles therefrom. First, the Plaintiff was obliged to “prove every element of [her] claims by a preponderance of the evidence.” 201 B.R. at 114 (numerous citations omitted). We also noted, id. at 120, that all of the sections of § 727(a) must be construed liberally in favor of debtors. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993); and [In re ] Segal, ..., 195 B.R. [325,] at 332 [ (Bankr.E.D.Pa.1996) ]. In Rosen, supra, 996 F.2d at 1531, quoting H.R.REP. No. 595, 95th Cong., 1st Sess. 384 (1977), the court noted that Congress has described the § 727 discharge provisions as “‘the heart of the fresh start of the bankruptcy law provisions of bankruptcy law.’ ” See also [In re] Staffieri, ..., 1994 WL 463978, at *2 [ (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obenmeyer, Rebmann, Maxwell & Hippel v. Staffieri, 1995 WL .339019 (E.D.Pa. June 5, 1995) ]. Thus, a denial of a discharge has been held to be “ ‘an extreme step ... not to be taken lightly.’ ” Id., quoting Rosen, supra, 996 F.2d at 1531. We also note at the outset a significant distinction between the proof required to establish §§ 727(a)(2) and (a)(4) claims as opposed" }, { "docid": "6277018", "title": "", "text": "concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or (B) property of the estate, after the date of the filing of the petition; ... At the outset, we observe that all of the sections of § 727(a) must be construed liberally in favor of debtors. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993); and Segal, supra, 195 B.R. at 332. In Rosen, supra, 996 F.2d at 1531, quoting H.R.REP. No. 595, 95th Cong., 1st Sess. 384 (1977), the court noted that Congress has described the § 727 discharge provisions as “ ‘the heart of the fresh start of the bankruptcy law provisions of bankruptcy law.’ ” See also Staffieri, supra, 1994 WL 463978, at *2. Thus, a denial of a discharge has been held to be “ ‘an extreme step ... not to be taken lightly.’ ” Id., quoting Rosen, supra, 996 F.2d at 1531. We also note at the outset a significant distinction between the proof required to establish §§ 727(a)(2) and (a)(4) claims as opposed to those raised under §§ 727(a)(3) and (a)(5). The former, §§ 727(a)(2) and (a)(4), require proof of an intent to injure the creditor and knowing and .fraudulent action, respectively, while the latter, §§ 727(a)(3) and (a)(5), require no showing at all regarding the debtor’s state of mind. See Cook, supra, 146 B.R. at 935-36; and In re Trinsey, 114 B.R. 86, 90-92 (Bankr.E.D.Pa.1990). As will be noted, except for a rather narrow § 727(a)(3) claim, the Plaintiffs rely almost exclusively on §§ 727(a)(2) and (a)(4), thus requiring that they present evidence of a culpable mens rea on the part of the Debtors. With respect to § 727(a)(2) in particular, the Plaintiffs often stray from the focus of § 727(a)(2), which is directed towards actions of debtors seeking transfer or conceal property from the trustee and creditors. See In re Cohen, 142 B.R. 720, 725-30 (Bankr. E.D.Pa.1992); and Henderson, supra, 134 B.R. at 156-59. A threshold problem with many of the" }, { "docid": "6277048", "title": "", "text": "financial affairs; ... With regard to Plaintiffs’ contention that the Debtors failed to properly list, or to provide them or the trustee with written information regarding, the Brill Trust, this issue has already been discussed at pages 123-27 supra and rejected. However, throughout their Complaint and brief, although incorrectly referencing §§ 727(a)(2) and (a)(3), the Plaintiffs have raised numerous issues regarding the under-valuation of the assets and-other inaccuracies in the Debtors’ Schedules and the Statement for consideration, and we will consider that issue here. While we are inclined to give some leeway as to the appropriate Code section under which such claims must be raised, we note that, in order to establish a claim under § 727(a)(4)(A), a plaintiff must prove that the debtor (1) made a false oath or statement, (2) that was knowing and fraudulent, (3) which false oath or statement was material to the course of the bankruptcy case at hand. See Segal, supra, 195 B.R. at 332; Henderson, supra, 134 B.R. at 159-60; and In re Woerner, 66 B.R. 964, 971-72 (Bankr.E.D.Pa. 1986), aff'd, C.A. No. 86-7324 (E.D.Pa. April 28, 1987). These requirements cannot be avoided by attempting to invoke an inapplica ble alternative Code section with less demanding requirements. This court has previously stated that a false statement or false oath is “material” only if it applies to the discovery of business transactions, assets, past business dealings of the debtor, or the existence or disposition of the property of the debtor’s estate. See Segal, supra, 195 B.R. at 332. A claim under § 727(a)(2) requires a similar showing of mens rea, i.e., the debtors’ intention to hinder a creditor or the trustee must be proven. Only § 727(a)(3), which cannot be invoked to challenge inaccuracies in a debtor’s Sched ules and Statement, does not include any showing of purposefulness wrongdoing by the debtor. Therefore, we believe that the Plaintiffs are obliged to establish that inaccuracies and omissions in the Debtors’ Schedules and Statement were material, knowing, and fraudulent in order to deny the Debtors a discharge on this basis. At the outset we note a" }, { "docid": "3796573", "title": "", "text": "the debtor knowingly and fraudulently, in or in connection with the case[,] made a false oath or account.” 11 U.S.C. § 727(a)(4)(A). A debtor’s failure to list all assets owned in his Bankruptcy Schedule and Statement of Financial Affairs can constitute a false oath or account for purposes of § 727(a)(4)(A), since these are statements made under oath. See In re Spitko, 357 B.R. 272, 312 (Bankr.E.D.Pa.2006); In re Strickland, 350 B.R. 158, 163 (Bankr.D.Del.2006) (citing cases). As a general matter, the Code’s discharge provision is to be construed liberally in favor of the debtor and against the creditor. See Rosen v. Bezner, 996 F.2d 1527, 1534 (3d Cir.1993); In re Pelkowski, 990 F.2d 737, 744 (3d Cir.1993). Consequently, a creditor opposing discharge has the burden of establishing by a preponderance of the evidence that the obligation is not dischargeable. See Boston University v. Mehta, 310 F.3d 308, 311 (3d Cir.2002) (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). To successfully challenge a debtor’s discharge under § 727(a)(4)(A), a creditor must prove that: (1) the debtor made a statement under oath; (2) the statement was false; (3) the debtor knew the statement was false; (4) the debtor made the statement with the intent to deceive; and (5) the statement related materially to the bankruptcy case. See In re Spitko, supra, at 312 (Bankr. E.D.Pa. Oct. 23, 2006); In re Strickland, 350 B.R. at 163; In re Dolata, 306 B.R. 97, 148 (Bankr.W.D.Pa.2004). “ ‘The requirement that a false statement be knowingly and fraudulently made is satisfied for purposes of 11 U.S.C. § 727(a)(4)(A) if the debtor knows the truth and nonetheless willfully and intentionally swears to what is false,”’ In re Dolata, 306 B.R. at 148-49 (quoting In re Ingle, 70 B.R. 979, 984 (Bankr.E.D.N.C.1987)) (additional citation omitted), or if the debtor exhibits “reckless indifference to the truth.” Id. at 149 (quoting In re Dubrowsky, 244 B.R. 560, 576 (E.D.N.Y.2000)) (additional citations omitted). See also In re Spitko, supra, at 312 (reckless indifference to the truth will fall within the scope of § 727(a)(4)(A)" }, { "docid": "19288892", "title": "", "text": "to the A/S produced by the Debtor, although it did list all of other assets apparently included in the sale. The Debtor, on her part, testified that all of the equipment and inventory remained at the Bala Business upon her closing same. Furthermore, the Debtor asserts that she has never seen nor used the oven, and, in any case, it was not a collateralized item in the A/S. There is no evidence that the oven is or ever was at the Albrecht Business location. C. DISCUSSION Before discussing the specific § 727(a) claims alleged by the Plaintiff, we note that all the sections of § 727(a) must be construed liberally in favor of debtors. See, e.g., Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993); In re Blanchard, 201 B.R. 108, 120 (Bankr.E.D. Pa. 1996); In re Staffieri, 1994 WL 463978, at *2 (Bankr.E.D.Pa. Aug.23, 1994) (“Staffieri I”), aff'd sub nom. Obermayer, Rebmann, Maxwell & Hippel v. Staffieri, 1995 WL 339019 (E.D.Pa. June 5, 1995) (“Staffieri II”); and In re Cohen, 142 B.R. 720, 725-26 (Bankr.E.D.Pa.1992) (“Cohen II”) (“the courts have consistently construed objections to discharge strictly against the objector and in favor of the debtor”). A denial of discharge is an “extreme step” that is not to be taken lightly. See, e.g., Rosen, supra, 996 F.2d at 1531; and Blanchard, supra, 201 B.R. at 120. A plaintiff in an action under § 727(a) must now prove any grounds for denial of discharge' by a “preponderance of the evidence” rather than by the more demanding “clear and convincing evidence” standard in light of Grogan v. Garner, 498 U.S. 279, 285-91, 111 S.Ct. 654, 658-61, 112 L.Ed.2d 755 (1991). See, e.g., Blanchard, supra, 201 B.R. at 114. However, the burden of proof of a cause of action supporting a denial of a debtor’s discharge clearly remains on the plaintiff. See Staffieri I, supra, 1994 WL 463978, at *3. 1. THE PLAINTIFF HAS NOT PRESENTED SUFFICIENT EVIDENCE TO ESTABLISH THE REQUISITE INTENT BY THE DEBTOR TO HINDER, DELAY, OR DEFRAUD THE PLAINTIFF NECESSARY TO SUSTAIN A § 727(a)(2)(A) CLAIM. We first consider" }, { "docid": "6429237", "title": "", "text": "oath or account.” The Plaintiff bases his request for a denial of discharge on: (1) the Debtor’s failure to list Ms. Anderson, the Vaughns, the Tinneys, the Stumpos and F & F as unsecured creditors (and the Anderson suit as a potential receivable) and (2) the Debtor’s failure to disclose an alleged loan from his father. Section 727(a)(4)(A) is designed to ensure that the debtor puts dependable information in the hands of those interested in the administration of the bankruptcy estate without the need for the trustee or a party in interest to engage in costly, exhaustive investigations to ferret out the truth concerning the Debtor’s financial condition. See, e.g., In re Burnley, 1999 WL 717215, at *2-3 (Bankr.E.D.Pa. Aug.27, 1999). As such, § 727(a)(4)(A) applies “not only to false statements made under sworn oath, but also to unsworn declarations under penalty of perjury, such as those made by a debtor on Official Bankruptcy Forms.” In re Burnley, 1999 WL 717215 at *2; In re Kasai, 217 B.R. 727, 734 (Bankr.E.D.Pa.), aff'd, 223 B.R. 879 (E.D.Pa.1998); see also In re Chalik, 748 F.2d 616, 618 n. 3 (11th Cir.1984). To prove a § 727(a)(4)(A) claim, the Plaintiff must demonstrate by a preponderance of the evidence that: (1) the debtor made a false oath or statement, (2) the debtor knew the statement was false, (3) the debtor made the statement with the intent to deceive, and (4) the statement was material to the bankruptcy case. See Cadle Co. v. Zofko, 380 B.R. 375, 382 (W.D.Pa.2007); Chusid v. First Union Nat’l Bank, 1998 WL 42292 at *7 (E.D.Pa.1998); see also Boston University v. Mehta, 310 F.3d 308, 311 (3d Cir.2002) (citing Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). Objections to discharge are liberally construed in favor of the debtor and strictly construed against the objector. Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). Additionally, “ ‘[t]he reasons for denying a discharge to a bankrupt must be real and substantial, not merely technical and conjectural.’ ” Palmacci v. Umpierrez, 121 F.3d 781, 786 (1st Cir.1997) (citation" }, { "docid": "22026082", "title": "", "text": "immaterial.” Woemer, supra, 66 B.R. at 972. In Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993), the court noted that Congress described § 727’s discharge provision as “ ‘the heart of the fresh start provisions of the bankruptcy law,’ ” quoting H.R.REP. No. 595, 95th Cong., 1st Sess. 384 (1977), U.S.Code Cong. & Admin.News 1978 pp. 5787, 5963, 6340. As such, § 727(a) “is to be construed liberally in favor of the debtor.” Id. The court aptly described the denial of a discharge as “an extreme step ... not to be taken lightly.” Id. In light of Grogan, supra, although the burden of proof in a § 727 action is expressly placed upon the plaintiff, see F.R.B.P. 4005, most cases have agreed that the same evidence standard applies to a § 727 claim as to a § 523 claim, namely, the plaintiff must prove a cause by a preponderance of the evidence. See, e.g., In re Adams, 31 F.3d 389, 394 (6th Cir.1994), cert. denied sub nom. Adams v. Barclays American Business Credit, Inc., — U.S. -, 115 S.Ct. 903, 130 L.Ed.2d 786 (1995); In re Serafini, 938 F.2d 1156, 1157 (10th Cir.1991); In re Cook, 146 B.R. 934, 940 (Bankr.E.D.Pa.1992); and Henderson, supra, 134 B.R. at 156. In Henderson, id., this court noted that, under a preponderance of the evidence standard of proof, the plaintiffs burden is to convince [the fact finder] upon all the evidence before [it] that the facts asserted by the plaintiff are more probably true than false ... [the fact finder] must at least be convinced that the evidence considered as a whole, its ‘preponderance’ to use the traditional term, indicates that the facts asserted by the plaintiff are probably true. It must also be noted that causes of action under 11 U.S.C. §§ 727(a)(2) and (a)(4) are, generally speaking, considerably more difficult to sustain than claims under 11 U.S.C. §§ 727(a)(3) and (a)(5). That is because, under the former sections, the plaintiff is obliged to establish a culpable mens rea on the part of the debtor, specifically “an intent to hinder, delay or" }, { "docid": "4558128", "title": "", "text": "resolved in state court; yet, the house itself was damaged by the Debtor’s willful and malicious actions, satisfying the § 523(a)(6) burden. Such damage was evident in the photographs offered by the Plaintiff. Also, the Debtor transferred the property before any tribunal decided to whom the property belongs. Until such a ruling is made, the resulting debt owed by Defendant stemming from the willful and malicious injury to the Plaintiffs property must be excepted from discharge. Thus, the Plaintiffs debt is excepted from discharge under § 523(a)(6). However, I do not here make a finding on the amount of damages as I believe that is the jurisdiction of the state court. I simply hold that the claim for any wrongful removal and damages caused to the Plaintiffs household is nondischargeable. The amount of such claim should be determined in a subsequent state court proceeding. B. Counts Pertaining to Denial of Discharge Under § 727 Plaintiff coupled his § 523 dischargeability count with four counts under § 727 seeking, under different grounds, to deny the Debtor a Chapter 7 discharge. I turn now to each of those in turn. “Congress described § 727’s discharge provision as the heart of the fresh start provisions of the bankruptcy law.” Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993) (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977)). As a result, bankruptcy courts must construe the provision liberally in favor of the debt- or. Id.; see also In re Burgess, 955 F.2d 134, 136 (1st Cir.1992); In re Adeeb, 787 F.2d 1339, 1342 (9th Cir.1986). Ultimately, the death knell of a denial of discharge is a severe sanction and must be “considered with great care.” In re Yanni, 354 B.R. 708, 711 (Bankr.E.D.Pa.2006). Procedurally, it is the Plaintiffs burden to prove an objection to discharge by a preponderance of the evidence. See Grogan, 498 U.S. at 289, 111 S.Ct. 654 (Congress instructed that the standard of proof under § 727 is preponderance of the evidence). i. Count Two, Denial of Discharge Under 727(a)(2) The first § 727 claim seeks to deny the Debtor" }, { "docid": "3841419", "title": "", "text": "B.R. 325, 332 (Bankr.E.D.Pa.1996), to establish a § 727(a)(4)(A) claim, the Plaintiff must demonstrate that (1) a false oath or statement was made by the Debt- or, (2) knowingly and fraudulently, (3) which was material to the course of the bankruptcy case. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991); and In re Woemer, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D. Pa. April 28,1987). See also In re Staffieri, 1994 WL 463978, at *3-*4 (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obermayer, Rebmann, Maxwell & Hippel v. Staffieri, [1995 WL 339019 (E.D.Pa. June 5, 1995) ]; In re Freedman, 1994 WL 455030 (Bankr.E.D.Pa. Aug. 19, 1994), aff'd, 1995 WL 118217 (E.D.Pa. March 9, 1995); and In re Ok Cha Nam, 1993 WL 541135, at *6-*7 (Bankr.E.D.Pa. May 19,1993), aff'd, 1995 C.A. No. 94-5439 (E.D.Pa. May 1, 1995); aff'd, 77 F.3d 463 (3d Cir.1996). Accord, In re Ishkhanian, 210 B.R. 944, 955 (Bankr.E.D.Pa.1997). The vast array of false statements made by the Debtor in his Schedules and Statement are catalogued at pages 771-772 supra. These include the Debtor’s understating his income at about one-third of its actual amount of $150,000 to $200,000 annually; omitting numerous substantial bank accounts; and omitting or erroneously asserting joint ownership of substantial personalty. These disclosures are material; indeed, the disclosures of income and assets are central to any bankruptcy case. These pervasive and immense errors, all to the Debtor’s benefit, clearly support the conclusion that the violations were “knowing” and “fraudulent.” Indeed, the Debtor impressed us as a witness lacking credibility and as possibly concealing additional assets which have not yet come to light. See In re Mistry, 77 B.R. 507, 512-13 (Bankr.E.D.Pa.1987), aff'd, C.A. No. 87-6466 (E.D.Pa. Feb. 9,1988); and In re Somerville, 73 B.R. 826, 833, 837, 838 (Bankr.E.D.Pa.1987) (an assessment of a debtor’s general credibility or lack thereof is critical in deciding the merits of diseharge/dischargeability actions). The disclosure violations at issue here are more severe than those at issue in another case in which we denied the debtor’s discharge under § 727(a)(4)(A), Freedman, supra, 1994 WL 455030, at" }, { "docid": "12485519", "title": "", "text": "good cause for failure to act sooner. III. § 727(a)(4)(A) Standard The only claim the bankruptcy court allowed to proceed arose under 11 U.S.C. § 727(a)(4)(A), requiring the court to grant a discharge unless the debtor “knowingly and fraudulently ... made a false oath or account.” A plaintiff must prove the debtor: 1) made a false oath or statement; 2) that was knowing and fraudulent; and 3) that was material to the bankruptcy proceeding. See In re Katz, 203 B.R. 227, 232 (Bankr.E.D.Pa.1996). A debtor’s false statement or omission on Schedules constitutes a false oath or statement under § 727(a)(4)(A). See In re Hogan, 193 B.R. 130, 140 (Bankr.N.D.N.Y.1995). The statement must be knowingly fraudulent; there must be an intent to hinder, delay or defraud for the actions to have been done knowingly and fraudulently. See In re Segal, 195 B.R. 325, 333 (Bankr.E.D.Pa.1996). Fraudulent intent is a question of fact. See United States v. Tabor Court Realty Corp., 803 F.2d 1288, 1304 (3d Cir.1986), cert. denied, 483 U.S. 1005, 107 S.Ct. 3229, 97 L.Ed.2d 735 (1987). “Intent is difficult to demonstrate; therefore, circumstantial evidence may be used to establish a pattern of concealment and nondisclosure.” In re Tarle, 87 B.R. 376, 378 (Bankr.W.D.Pa.1988). “Mere failure to disclose without more is insufficient to establish the requisite intent.” In re Garcia, 88 B.R. 695, 705 (Bankr.E.D.Pa.1988). A false oath or statement is “material” if it concerns discovery of assets, business transactions, and/or past business dealings of the debtor or the existence or disposition of the debtor’s property. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991). “[T]here is little that will prove to be immaterial for purposes of required disclosure if it aids in understanding the debtor’s financial affairs and transactions.” In re Coombs, 193 B.R. 557, 567 (Bankr.S.D.Cal.1996). The burden is on plaintiff to prove grounds for denial of discharge by a preponderance of evidence. See In re Blanchard, 201 B.R. 108, 114 (Bankr.E.D.Pa.1996). In any § 727(a) action, the court must construe the section liberally in favor of the debtor. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d" }, { "docid": "3841418", "title": "", "text": "attempted to obtain money, property, or advantage, or a promise of money, property, or advantage, for acting or forbearing to act; or entitled to possession under this title, any recorded information, including books, documents, records, and papers, relating to the debtor’s property or financial affairs. (5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities; (6) the debtor has refused, in the case— (A) to obey any lawful order of the court, other than an order to respond to a material question or to testify; It is well-established that the Plaintiff was obliged to prove any of these grounds by a preponderance of the evidence. See In re Blanchard, 201 B.R. 108, 114 (Bankr.E.D.Pa.1996), citing, e.g, Grogan v. Garner, 498 U.S. 279, 282-89, 111 S.Ct. 654, 656-61, 112 L.Ed.2d 755 (1991). The evidence of record clearly establishes valid causes of action under §§ 727(a)(4)(A), (a)(2)(B), and (a)(5). As we stated in In re Segal, 195 B.R. 325, 332 (Bankr.E.D.Pa.1996), to establish a § 727(a)(4)(A) claim, the Plaintiff must demonstrate that (1) a false oath or statement was made by the Debt- or, (2) knowingly and fraudulently, (3) which was material to the course of the bankruptcy case. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991); and In re Woemer, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D. Pa. April 28,1987). See also In re Staffieri, 1994 WL 463978, at *3-*4 (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obermayer, Rebmann, Maxwell & Hippel v. Staffieri, [1995 WL 339019 (E.D.Pa. June 5, 1995) ]; In re Freedman, 1994 WL 455030 (Bankr.E.D.Pa. Aug. 19, 1994), aff'd, 1995 WL 118217 (E.D.Pa. March 9, 1995); and In re Ok Cha Nam, 1993 WL 541135, at *6-*7 (Bankr.E.D.Pa. May 19,1993), aff'd, 1995 C.A. No. 94-5439 (E.D.Pa. May 1, 1995); aff'd, 77 F.3d 463 (3d Cir.1996). Accord, In re Ishkhanian, 210 B.R. 944, 955 (Bankr.E.D.Pa.1997). The vast array of false statements made by the Debtor in his Schedules and Statement are catalogued at pages" }, { "docid": "19000105", "title": "", "text": "of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed— (A) property of the debtor, within one year before the date of the filing of the petition; or ... (3) the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case; (4) the debtor knowingly and fraudulently, in or in connection with the case— (A) made a false oath or account; (5) the debtor has failed to explain satisfactorily, before determination of denial of discharge under this paragraph, any loss of assets or deficiency of assets to meet the debtor’s liabilities; ... It cannot be overemphasized that Section 727 is the heart of the Bankruptcy Code and that the “fresh start” that it engenders is one of the most powerful of the benefits of invocation of the Code to debtors. Hence, “a denial of discharge to a debtor is not a step to be taken lightly. Objections to discharge must be construed strictly against the objector and liberally in favor of the debtor.” In re Woerner, 66 B.R. 964, 971 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D.Pa., Order filed April 28, 1987). Accord: In re Decker, 595 F.2d 185, 187 (3d Cir.1979); In re Goldstein, 66 B.R. 909, 917 (Bankr.W.D.Pa.1986); and In re Gelfand, 47 B.R. 876, 879 (Bankr.E.D.Pa.1985). “Public policy requires that objections to discharge not be easily granted.” Woerner, supra, 66 B.R. at 971. Randolph, therefore, has the burden of proving his objections to discharge, as Bankruptcy Rule 4005 specifically provides. Our Findings of Fact make clear that we have serious questions about almost everything that came out of the Debtor’s mouth throughout his testimony. Ultimately, this, rather than the strength of Randolph’s case, leads to our decision to deny the Debtor’s discharge. However, as stated earlier, the burden of" }, { "docid": "12485520", "title": "", "text": "735 (1987). “Intent is difficult to demonstrate; therefore, circumstantial evidence may be used to establish a pattern of concealment and nondisclosure.” In re Tarle, 87 B.R. 376, 378 (Bankr.W.D.Pa.1988). “Mere failure to disclose without more is insufficient to establish the requisite intent.” In re Garcia, 88 B.R. 695, 705 (Bankr.E.D.Pa.1988). A false oath or statement is “material” if it concerns discovery of assets, business transactions, and/or past business dealings of the debtor or the existence or disposition of the debtor’s property. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991). “[T]here is little that will prove to be immaterial for purposes of required disclosure if it aids in understanding the debtor’s financial affairs and transactions.” In re Coombs, 193 B.R. 557, 567 (Bankr.S.D.Cal.1996). The burden is on plaintiff to prove grounds for denial of discharge by a preponderance of evidence. See In re Blanchard, 201 B.R. 108, 114 (Bankr.E.D.Pa.1996). In any § 727(a) action, the court must construe the section liberally in favor of the debtor. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993). IV. Transfer of Funds “A presumption of actual fraudulent intent necessary to bar a discharge arises when property ... is transferred to relatives.” In re Butler, 38 B.R. 884, 888 (Bankr.D.Kan.1984). A transfer of property to relatives “will be subject to close scrutiny, and the relationship of the parties in conjunction with other circumstances will often make the [plaintiffs] case notwithstanding the absence of direct evidence of fraud.” In re Loeber, 12 B.R. 669, 675 (Bankr.D.N.J.1981). Mr. Kasai argues the initial transfers of approximately $49,000 to the son and daughter were for paying legitimate corporate debts. Mr. Kasai claims the only reason they were deposited in the son’s account was because he could not secure his own bank account because of poor credit history. Mr. Kasai alleged some $10,000 transferred to the son was an “advance payment” for storage of records of the then-defunct business. The bankruptcy court found Mr. Kasai’s “storage of records” explanation incredible. It was not clearly erroneous to find fraud based on these transfers from Mr. Kasai to his relatives." }, { "docid": "8012124", "title": "", "text": "noted, id. at 120, that all of the sections of § 727(a) must be construed liberally in favor of debtors. See Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993); and [In re ] Segal, ..., 195 B.R. [325,] at 332 [ (Bankr.E.D.Pa.1996) ]. In Rosen, supra, 996 F.2d at 1531, quoting H.R.REP. No. 595, 95th Cong., 1st Sess. 384 (1977), the court noted that Congress has described the § 727 discharge provisions as “‘the heart of the fresh start of the bankruptcy law provisions of bankruptcy law.’ ” See also [In re] Staffieri, ..., 1994 WL 463978, at *2 [ (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obenmeyer, Rebmann, Maxwell & Hippel v. Staffieri, 1995 WL .339019 (E.D.Pa. June 5, 1995) ]. Thus, a denial of a discharge has been held to be “ ‘an extreme step ... not to be taken lightly.’ ” Id., quoting Rosen, supra, 996 F.2d at 1531. We also note at the outset a significant distinction between the proof required to establish §§ 727(a)(2) and (a)(4) claims as opposed to those raised under §§ 727(a)(3) and (a)(5). The former, §§ 727(a)(2) and (a)(4), require proof of an intent to injure the creditor and knowing and fraudulent action, respectively, while the latter, §§ 727(a)(3) and (a)(5), require no showing at all regarding the debtor’s state of mind. See [In re] Cook, ..., 146 B.R. at [934,] 935-36 [ (Bankr.E.D.Pa.1992) ]; and In re Trinsey, 114 B.R. 86, 90-92 (Bankr.E.D.Pa.1990). Speaking specifically of § 727(a)(4)(A), we stated, 201 B.R. at 127, that in order to establish a claim under § 727(a)(4)(A), a plaintiff must prove that the debtor (1) made a fqlse oath or statement, (2) that was knowing and fraudulent, (3) which false oath or statement was material to the course of the bankruptcy case at hand. See Segal, supra, 195 B.R. at 332; [In re] Henderson, ..., 134 B.R. [147,] at 159-60 [ (Bankr.E.D.Pa.1991) ]; and In re Woemer, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D. Pa. April 28, 1987). The Debtor’s pervasive omissions and misleading statements in his Schedules are" }, { "docid": "22026081", "title": "", "text": "by the Debtor, (2) knowingly and fraudulently, (3) which was material to the course of the bankruptcy case. See In re Henderson, 134 B.R. 147, 160 (Bankr.E.D.Pa.1991); and In re Woerner, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D.Pa. April 28, 1987). See also In re Staffieri, 1994 WL 463978, at *3-*4 (Bankr.E.D.Pa. Aug. 23, 1994), aff'd sub nom. Obermayer, Rebmann, Maxwell & Hippel v. Staffieri, supra; In re Freedman, 1994 WL 455030 (Bankr.E.D.Pa. Aug. 19, 1994), aff'd, 1995 WL 118217 (E.D.Pa. March 9, 1995); and In re Ok Cha Nam, 1993 WL 541135, at *6-*7 (Bankr.E.D.Pa. May 19, 1993), aff'd, 1995 C.A. No. 94-5439 (E.D.Pa. May 1, 1995), aff'd, 77 F.3d 463 (3d Cir.1996). A false oath or statement is “material” if it “concerns discovery of assets, business transactions, and/or past business dealings of the debtor or the existence or disposition of the debtor’s property.” Henderson, supra, 134 B.R. at 160. “Matters so trivial in nature as to have but little effect upon the estate and upon creditors have been treated as immaterial.” Woemer, supra, 66 B.R. at 972. In Rosen v. Bezner, 996 F.2d 1527, 1531 (3d Cir.1993), the court noted that Congress described § 727’s discharge provision as “ ‘the heart of the fresh start provisions of the bankruptcy law,’ ” quoting H.R.REP. No. 595, 95th Cong., 1st Sess. 384 (1977), U.S.Code Cong. & Admin.News 1978 pp. 5787, 5963, 6340. As such, § 727(a) “is to be construed liberally in favor of the debtor.” Id. The court aptly described the denial of a discharge as “an extreme step ... not to be taken lightly.” Id. In light of Grogan, supra, although the burden of proof in a § 727 action is expressly placed upon the plaintiff, see F.R.B.P. 4005, most cases have agreed that the same evidence standard applies to a § 727 claim as to a § 523 claim, namely, the plaintiff must prove a cause by a preponderance of the evidence. See, e.g., In re Adams, 31 F.3d 389, 394 (6th Cir.1994), cert. denied sub nom. Adams v. Barclays American Business Credit, Inc.," }, { "docid": "8012125", "title": "", "text": "to those raised under §§ 727(a)(3) and (a)(5). The former, §§ 727(a)(2) and (a)(4), require proof of an intent to injure the creditor and knowing and fraudulent action, respectively, while the latter, §§ 727(a)(3) and (a)(5), require no showing at all regarding the debtor’s state of mind. See [In re] Cook, ..., 146 B.R. at [934,] 935-36 [ (Bankr.E.D.Pa.1992) ]; and In re Trinsey, 114 B.R. 86, 90-92 (Bankr.E.D.Pa.1990). Speaking specifically of § 727(a)(4)(A), we stated, 201 B.R. at 127, that in order to establish a claim under § 727(a)(4)(A), a plaintiff must prove that the debtor (1) made a fqlse oath or statement, (2) that was knowing and fraudulent, (3) which false oath or statement was material to the course of the bankruptcy case at hand. See Segal, supra, 195 B.R. at 332; [In re] Henderson, ..., 134 B.R. [147,] at 159-60 [ (Bankr.E.D.Pa.1991) ]; and In re Woemer, 66 B.R. 964, 971-72 (Bankr.E.D.Pa.1986), aff'd, C.A. No. 86-7324 (E.D. Pa. April 28, 1987). The Debtor’s pervasive omissions and misleading statements in his Schedules are simply too comprehensive to be passed off as incidental or accidental. With respect to the crucial issue of the credibility of the principal trial witness, the Plaintiff, as to the significant facts at issue, we find that she was highly credible as to these matters. Her justifiable anger and indignation at the Debt- or’s treatment of her was under control, although it had motivated her to act against her own apparent financial interests by challenging the Debtor’s discharge when it would have seemed that the status in which the Debtor was allegedly willing to place her, as his only nondischargeable creditor (assuming other creditors were not similarly conveniently omitted, but see page 235 infra), would have been superior to her place as one of the Debtor’s many creditors benefitting from denial of his discharge. In particular, we believe that her descriptions of the Debt- or’s lifestyle as that of the “rich and famous” was accurate. The contrast of this reality to the picture painted on his Schedules by the Debtor, which, as we noted at" }, { "docid": "4661936", "title": "", "text": "977, 986 (Bankr.D.Colo.1989); In re Ingersoll, 106 B.R. 287, 292 (Bankr.M.D.Fla.1989); In re Syrtveit, 105 B.R. 596, 598 (Bankr.D.Mont. 1989); In re Serritella, 103 B.R. 313, 315 (Bankr.M.D.Fla.1989); In re Latimer, 82 B.R. at 359; In re Greene, 81 B.R. 829, 834 (Bankr.S.D.N.Y.1988), aff'd, 103 B.R. 83 (S.D.N.Y.1989); In re Somerville, 73 B.R. 826, 835 (Bankr.E.D.Pa.1987); In re Woerner, 66 B.R. at 972; In re Shapiro, 59 B.R. at 847. Under the former Bankruptcy Act, the Second Circuit applied the fair preponderance standard to an objection to discharge under § 14(c)(1), the predecessor to Code § 727(a)(4). See, e.g., In re Robinson, 506 F.2d 1184, 1187 (2d Cir.1974); In re Slocum, 22 F.2d 282, 285 (2d Cir.1927). The legislative history to Code § 727(a)(4), at first blush, appears to suggest that the fair preponderance standard should apply. The fourth ground for denial of discharge is the commission of a bankruptcy crime, though the standard of proof is preponderance of the evidence rather than proof beyond a reasonable doubt. These crimes include the making of a false oath or account, the use or presentation of a false claim, the giving or receiving of money for acting or forbearing to act, and the withholding from an officer of the estate entitled to possession of books and records relating to the debtor’s financial affairs. H.Rep. No. 595, 95th Cong., 1st Sess. 384 (1977); Sen.Rep. No. 989, 95th Cong., 2d Sess. 98-99 (1978), U.S.Code Cong. & Admin.News 1978, pp. 5884-5885, 6340. However, the legislative history seems inconclusive. It “speaks not of setting a standard of proof, but instead, apprises us that a false oath case, although akin to perjury, need not be tested by the traditional criminal standard of proof beyond a reasonable doubt.” In re Portner, 109 B.R. at 980. We believe the appropriate standard of proof for a Code § 727(a)(4) objection to be clear and convincing evidence. A debtor is presumed “innocent, honest, and entitled to a discharge unless and until proven otherwise.” Id. at 985. As one court noted: Provisions dealing with the discharge have been traditionally recognized to be" } ]

[ { "docid": "22397769", "title": "", "text": "part and dissenting in part). In its February 23, 1987, amendments to the ordinance, the board of commissioners changed the permit form from “Have you paid the application fee?” to “Have you paid any application fee?,” see App. to Pet. for Cert. 115 (emphasis added), thus acknowledging the administrator’s authority to charge no fee. The District Court’s finding that in this instance the Forsyth County administrator applied legitimate, content-neutral criteria, even if correct, is irrelevant to this facial challenge. Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 760, 770 (1988). “It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion.” Thornhill v. Alabama, 310 U. S. 88, 97 (1940). Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so. Petitioner also claims that Cox v. New Hampshire, 312 U. S. 569 (1941), excuses the administrator’s discretion in setting the fee. Reliance on Cox is misplaced. Although the discretion granted to the administrator under the language in this ordinance is the same as in the statute at issue in Cox, the interpretation and application of that language are different. Unlike this case, there was in Cox no testimony or evidence that the statute granted unfettered discretion to the licensing authority. Id., at 576-577. The dissent prefers a remand because there are no lower court findings on the question whether the county plans to base parade fees on hostile crowds. See post, at 142. We disagree. A remand is unnecessary because there is no question that petitioner intends the ordinance to recoup costs that are related to listeners’ reaction to the speech. Petitioner readily admits it did not charge for police protection for the 4th" } ]

[ { "docid": "3022012", "title": "", "text": "Forsyth, 505 U.S. at 130, 112 S.Ct. 2395; Southeastern Promotions, 420 U.S. at 554, 95 S.Ct. 1239. In addition to not being content neutral, the City’s permit scheme contains both of the other “evils that will not be tolerated.” FW/PBS, 493 U.S. at 225-26, 110 S.Ct. 596. It vests unbridled discretion in the City’s building official and it lacks the constitutionally-required procedural safeguards. It is well settled that “ ‘a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license’ must contain ‘narrow, objective, and definite standards to guide the licensing authority.’ ” Forsyth, 505 U.S. at 131, 112 S.Ct. 2395 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)). This is so “because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 763-64, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (citations omitted). If a statute gives licensing officials overbroad and unbridled discretion because it lacks the proper standards for applying the law, it is void on its face. Id. at 755-57, 108 S.Ct. 2138. Magistrate Judge Hemann thoroughly examined those portions of the ordinance that provide reasonably narrow, objective, and definite standards; those sections that are more subjective and leave the discretion of the building official relatively unfettered; and, those portions which leave the decisionmaker’s discretion entirely unconstrained. (Report and Recommendation at 17-21.) The City did not specifically object to the Magistrate Judge’s conclusions; rather, the City argued generally that the “application of zoning regulations to unexpres-sive conduct such as erecting structures is constitutional, and does not involve prior restraint.” (Defs Objections at 6.) The City does not have any “specific written objection” to the Magistrate Judge’s conclusions, see Fed.R.Civ.P. 72(b), and neither does this Court. The Magistrate Judge’s analysis of the ordinance is correct, as is her conclusion that the ordinance lacks sufficiently narrow, objective, and definite standards which, therefore, gives government decisionmakers unfettered" }, { "docid": "5623435", "title": "", "text": "finish its work and issue a decision within the 10-day period. If the City delays beyond that time, the plaintiff would be entitled immediately to an injunction. In addition, the Court’s opinion proceeds under the incorrect assumption that challenging this city ordinance on its face is the appropriate course of action under the circumstances. It is true that our First Amendment case law has long allowed facial challenges to regulations implicating First Amendment rights, even in situations where facial challenges would otherwise be deemed inappropriate. As the Court noted in FW/PBS, “[although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decision maker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). But that is not the end of the matter. It is the policy of the federal courts, even in the First Amendment context, to consider any limiting constructions which the government places on its own regulations. Even if the ordinance were not perfectly clear on its face that the City has only 10 days, the City has stated that its interpretation of the ordinance is that the City has 10 days within which to complete the inspections necessary for the issuance of a license — precisely the construction which Nightclubs, Inc. concedes completely satisfies the definite and specific time limits requirement of FW/PBS. In a similar situation a few years ago, the Supreme Court was faced with a facial invalidity challenge on First Amendment grounds in conjunction with a concession by the government enforcement agency (in that case, the City of New York) that they would interpret the ordinance in a way which would cure the ordinance of its defects. The Court noted that “the city has interpreted the guideline in such a manner as to provide additional guidance to the officials" }, { "docid": "11019461", "title": "", "text": "the conflict between the panels, our court issued an order on November 2, 1994, vacating both panel decisions and scheduling both cases for rehearing en banc. The order explained that “the court has particular interest in the issue common to both cases of what is required to meet the requirement that ‘expeditious judicial review ... must be available,’ see FW/PBS, Inc. v. Dallas, 493 U.S. 215, [227, 110 S.Ct. 596, 605, 107 L.Ed.2d 603] (1990), and whether the ordinances involved in these cases meet that requirement.” All issues, however, were open for reargument. II. A. Although the County does not raise the issue, we must first determine whether Highway Craft may bring a facial challenge to the Licensing Law. The Licensing Law is directed at bookstores that sell non-obscene adult material and thereby engage in activity protected by the First Amendment. “[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). Unbridled discretion naturally exists when a licensing scheme does not impose adequate standards to guide the licensor’s discretion. Also, as we note today in 11126 Baltimore Blvd., Inc. v. Prince George’s County, Md., 58 F.3d 988 (4th Cir.1995) (en banc), unbridled discretion exists when a licensing scheme lacks adequate procedural safeguards to ensure a sufficiently prompt decision. See FW/PBS, 493 U.S. at 223, 226-27, 110 S.Ct. at 603, 605-06 (plurality opinion) (citing Freedman v. Maryland, 380 U.S. 51, 56-57, 85 S.Ct. 734, 737-38, 13 L.Ed.2d 649 (1965)). Here, Highway Craft alleged that the Licensing Law fails to ensure expeditious decision making. The district court agreed, holding that “the ordinance lacks specific time limits” and “allows the Licensing Department to delay the process.” Chesapeake B & M, Inc. v. Harford County, Md., 831 F.Supp. 1241, 1253 (D.Md.1993). Thus, a facial challenge is proper here. See FW/PBS, 493" }, { "docid": "14805857", "title": "", "text": "Norwood, 579 F.Supp. 108, 114 (D.Mass.1984); Providence Journal Co. v. City of Newport, 665 F.Supp. 107, 110 (D.R.I.1987); Miller Newspapers, Inc. v. City of Keene, 546 F.Supp. 831, 833 (D.N.H.1982); Southern New Jersey Newspapers, Inc. v. New Jersey Dep’t of Transp., 542 F.Supp. 173, 183 (D.N.J.1982); Philadelphia Newspapers, Inc. v. Borough Council, 381 F.Supp. 228, 241 (E.D.Pa.1974). But see Lakewood, 108 S.Ct. at 2155 (White, J., dissenting). There is therefore little question in this case that Sentinel’s distribution of the Orlando Sentinel via newsracks is constitutionally protected activity. Sentinel urges that Florida’s system of permitting the placement of newsracks at interstate rest areas is facially unconstitutional as a prior restraint, because it subjects the constitutionally protected distribution of its newspapers through newsracks to the standardless, unfettered discretion of Florida state officials. We believe that this challenge has merit. First, in acknowledging Sentinel’s facial attack on Florida’s unwritten scheme, we also acknowledge that the law generally does not favor such challenges. Nevertheless, facial challenges “have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990). It is well-established that in the area of freedom of expression, one has standing to challenge a statute or scheme “on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965) (emphasis added). Thus, the Supreme Court in Lakewood observed that its “cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” Lakewood, 108 S.Ct. at 2143 (footnote and citations omitted). In the instant case, for the same reason, it is likewise immaterial for" }, { "docid": "6109652", "title": "", "text": "those provisions were unconstitutionally applied to them. Accordingly, the Court grants summary judgment on both free speech. claims to the extent Plaintiffs bring an as-applie,d challenge to those provisions. 2. Plaintiffs’ Facial Challenge The County next argues that Plaintiffs’ facial challenges to the Zoning Ordinance lack merit. “Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). This Court has previously recognized that both of Plaintiffs’ arguments “are best characterized as foverbreadth’ challenges.” Citizens for Free Speech, 62 F.Supp.3d at 1134; see also United States v. Linick, 195 F.3d 538, 542 (9th Cir.1999) (considering overbroad regulations that vested officials with unbridled discretion to deny expressive activity); S.O.C., Inc. v. Cnty. of Clark, 152 F.3d 1136, 1144 (9th Cir.1998) (finding overbroad an ordinance that improperly restricted protected noncommercial speech). Under this type of challenge, Plaintiffs can establish the unconstitutionality of provisions of the Zoning Ordinance not applied to Plaintiffs by “showing that [those provisions] may inhibit the First Amendment rights of individuals who are not before the court.” See 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir.1999). The County advances two arguments in support of summary judgment on the facial challenge. First, the County asserts that County officials do not have unfettered discretion in applying the Zoning Ordinance, because the criteria guiding those officials’ decisions are limited and objective, subject to thorough review, and made within a reasonable period. Memo, at 12-21. Second, the County contends that Zoning Ordinance § 17.52.515 passes intermediate scrutiny. Reply at 10-11. For the reasons discussed below, the Court grants in part and denies in part summary judgment on Plaintiffs’ unfettered discretion claim, and grants summary judgment on Plaintiffs’ Section 17.52.515 claim. a. County Officials’ Discretion in Permitting Decisions The County’s first argument with respect to the facial challenge is that the provisions of the Zoning Ordinance challenged" }, { "docid": "9780769", "title": "", "text": "United States. This unfettered discretion, Plaintiffs argue, has the potential for impermissible viewpoint discrimination. A. Standing As an initial matter, Defendants contend that “there is at the very least a significant issue about whether plaintiffs have standing to bring a facial challenge to this aspect of the Act.” Opposition at 24 n. 17. Under Article III of the Constitution, it is a jurisdictional prerequisite that plaintiffs present an actual “case or controversy.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “To satisfy this requirement plaintiffs must show, inter alia, that they have standing.” American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d 501, 506 (9th Cir.1991). Thus, plaintiffs must demonstrate that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (citations and omitted). “Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as over-broad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); see also Ward v. Rock Against Rae- ism, 491 U.S. 781, 793, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that Ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity.’ ”) (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, . 755, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). “[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity" }, { "docid": "5623434", "title": "", "text": "challenge to Paducah’s ordinance regulating the issuance of licenses for sexually-oriented businesses, including nude dancing night clubs like plaintiffs. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) is controlling. In that case, the Supreme Court set out two requirements for such licensing schemes: The scheme must provide for definite and specific time limits within which a license is to be granted or denied, and an avenue for prompt judicial review must be established. The Paducah ordinance satisfies both requirements. ****** The ordinance itself is clear enough on its face. Section ll-79(a) requires an “immediate” investigation “upon receipt of an application,” and “the City shall approve or deny the issuance of a license to an applicant within ten (10) business days.” The ordinance on its face requires Paducah’s various administrative investigations and its final decision to take place “within ten (10) business days.” So I do not see any problem on the issue of delay. Even if there were some ambiguity, the City has conceded that it must finish its work and issue a decision within the 10-day period. If the City delays beyond that time, the plaintiff would be entitled immediately to an injunction. In addition, the Court’s opinion proceeds under the incorrect assumption that challenging this city ordinance on its face is the appropriate course of action under the circumstances. It is true that our First Amendment case law has long allowed facial challenges to regulations implicating First Amendment rights, even in situations where facial challenges would otherwise be deemed inappropriate. As the Court noted in FW/PBS, “[although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decision maker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (citing City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). But that is not the end of" }, { "docid": "6109651", "title": "", "text": "improperly applied Sections 17.18.010 and 17.18.120 to them. They only state that the. County’s arguments fail “because the.-County expressly prohibited Citizens’ speech pursuant to the PD [district provisions of the [Zoning] Ordinance, which set forth an unconstitutional prior restraint on speech.” Opp’n at 2. Plaintiffs are arguing, in essence, that because the Zoning Ordinance is facially unconstitutional as a prior restraint on speech, it is also unconstitutional as applied to them. But an “as-applied challenge goes to the nature of the application rather than the nature of the law itself,” Desert Outdoor Adver., Inc. v. City of Oakland, 506 F.3d 798, 805 (9th Cir.2007) (emphasis added), so whether the Zoning Ordinance is facially unconstitutional is not relevant to the question of whether it is unconstitutional as applied to Plaintiffs. Here,, the .County has presented substantial evidence that Zoning Ordinances §§ 17.18.010 and 17.18.120 did apply to Plaintiffs’ Signs, and that the Plan precluded Plaintiffs from building the Signs on the Parcel. Plaintiffs have failed to rebut the County’s evidence or provide any evidence indicating that those provisions were unconstitutionally applied to them. Accordingly, the Court grants summary judgment on both free speech. claims to the extent Plaintiffs bring an as-applie,d challenge to those provisions. 2. Plaintiffs’ Facial Challenge The County next argues that Plaintiffs’ facial challenges to the Zoning Ordinance lack merit. “Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). This Court has previously recognized that both of Plaintiffs’ arguments “are best characterized as foverbreadth’ challenges.” Citizens for Free Speech, 62 F.Supp.3d at 1134; see also United States v. Linick, 195 F.3d 538, 542 (9th Cir.1999) (considering overbroad regulations that vested officials with unbridled discretion to deny expressive activity); S.O.C., Inc. v. Cnty. of Clark, 152 F.3d 1136, 1144 (9th Cir.1998) (finding overbroad an ordinance that improperly restricted protected noncommercial speech). Under this type of challenge," }, { "docid": "14805858", "title": "", "text": "vests unbridled discretion in the decisionmaker.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990). It is well-established that in the area of freedom of expression, one has standing to challenge a statute or scheme “on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965) (emphasis added). Thus, the Supreme Court in Lakewood observed that its “cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” Lakewood, 108 S.Ct. at 2143 (footnote and citations omitted). In the instant case, for the same reason, it is likewise immaterial for purposes of a facial challenge that Sentinel’s newsracks are currently in place at the rest areas in question, i.e. that Sentinel has been permitted to place its newsracks by signing a contract with the DOE. Sentinel has challenged the constitutionality of the DBS’s permit scheme on its face, and has demonstrated that the scheme vests state officials with the unchanneled discretion to decide how and whether newsracks should be placed at rest areas — “and that is all it has to do. In a facial challenge such as this, the facts of the challenging party’s case are irrelevant.” City of Hallandale, 734 F.2d at 674 n. 4 (citing Beckerman v. City of Tupelo, Mississippi, 664 F.2d 502, 506-07 (5th Cir. Unit A 1981)). “A court may invalidate an excessively broad grant of discretion on its face, without regard to the particular facts of the plaintiff’s case, because the very existence of the discretion lodged in the public official is constitutionally unacceptable.” Fernandes v. Limmer, 663 F.2d 619, 625 (5th Cir. Unit A 1981), cert. denied," }, { "docid": "5623409", "title": "", "text": "F.3d 318, 322 (6th Cir.1997)). In cases involving the First Amendment, the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. Id. This is so because, as in this case, the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the statute. Id. III. The sole issue raised on appeal is whether Paducah’s licensing scheme, on its face, contains adequate procedural safeguards as required by the First Amendment. We conclude that it does not. As an initial matter, we note that Nightclubs has standing to bring a facial attack against the City’s licensing scheme. “In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. See id. at 57, 85 S.Ct. 734; East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224, reh’g denied (6th Cir.), cert. denied, 516 U.S. 909, 116 S.Ct. 277, 133 L.Ed.2d 198 (1995). The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, “ ‘every application of the statute create[s] an impermissible risk of suppression of ideas.’ ” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality op.) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)) (brackets in original). Because Nightclubs claims that Paducah’s licensing scheme creates an impermissible risk of delay and lacks constitutionally-required safeguards, Nightclubs has standing to challenge the ordinance on its face. A “prior restraint” exists when speech is conditioned upon the prior approval of" }, { "docid": "1778844", "title": "", "text": "L.Ed.2d 697 (1987)); see also Jacobs, 50 F.3d at 906 n. 20 (“[w]hen a plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law could never be. constitutionally applied-.”). Some circuits have determined that a facial challenge to a prior restraint on speech for want of certain procedural safeguards satisfies that general rule. “A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, ‘every application of the statute create[s] an impermissible risk of suppression of ideas.’ ” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000) (internal quotation marks and citations omitted) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S.Ct. 596, 107 L,Ed.2d 603 (1990) (plurality opinion)); see also Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998) (“A facial challenge is also appropriate when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech.”) (citation omitted). Whatever the precise scope of the general rule may be, the Supreme Court and this Court consistently have permitted facial challenges to prior restraints on speech without requiring the plaintiff to show that there are no conceivable set of facts where the application of the particular government regulation might or would be constitutional. See, e.g., Plain Dealer, 486 U.S. at 755-56, 108 S.Ct. at 2143; FW/PBS, 493 U.S. at 225, 110 S.Ct. at 604; Freedman, 380 U.S. at 58-60, 85 S.Ct. at 738-40; Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir.1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999); Redner v. Dean, 29 F.3d 1495 (11th Cir.1994); cf. Abramson v. Gonzalez, 949 F.2d 1567, 1573 (11th Cir.1992) (explaining that a facial challenge is proper because the regulation “affects the enjoyment of freedoms which the Constitution guarantees and subjects the exercise of First Amendment freedoms to licensing requirements”) (internal citations and" }, { "docid": "3433362", "title": "", "text": "that the injury is “ ‘fairly trace[able] to the challenged action of the defendant,’ rather than some third party not before the court.” Id. (quoting Defenders of Wildlife, 504 U.S. at 560), 112 S.Ct. 2130. Redress-ability means that it is “likely that a favorable court decision will redress the injury of the plaintiff.” Id. “The burden to establish standing rests on the party invoking federal jurisdiction.” Id. When the ease has been resolved in the district court on summary judgment grounds, “ ‘a plaintiff must establish that there exists no genuine issue of material fact as to justiciability,’ and ‘mere allegations’ of injury, causation, and redressability are insufficient.” Id. (quoting Dep’t of Commerce v. United States House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999)).' A Standing usually requires that the plaintiff assert an injury to himself, rather than injuries to third parties not before the court. However, this rule is not strictly enforced in the context of facial challenges to laws as violative of the First Amendment, even though a facial challenge to the validity of a statute necessarily entails a challenge to the statute as applied to third parties besides the plaintiff: In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (opiniqn of O’Connor, J.) (“Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as over- broad.”). “A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process.” Nightclubs, Inc. v. City of" }, { "docid": "7505585", "title": "", "text": "1369 (holding that size limitation on political signs was constitutional and that it “eontribute[s] to the appearance of the community and further[s] other legitimate municipal interests”). Accordingly, we grant summary judgment in favor of Greenwood Lake with respect to the challenged numerical, size and dura-tional limits on temporary political signs. d. Discretionary Authority Plaintiff also argues that the Greenwood Lake ordinance is unconstitutional because it vests unbridled discretion with respect to the grant or denial of a sign permit to municipal policymakers and because it does not guarantee an expeditious grant or denial of permit applications. In Forsyth County, 505 U.S. at 130-31,112 S.Ct. 2395, the Court held unconstitutional an ordinance that vested unbridled discretion in the town administrator in setting permit fees. The Court reasoned: [a] government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. To curtail that risk, a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority. Id. (quotations and citations omitted). Moreover, even where a decision maker does not have unbridled discretion, an ordinance must be declared unconstitutional where it fails “to place specific and reasonable time limits on official decision makers and to provide for prompt judicial review of adverse decisions.” Beal v. Stern, 184 F.3d 117, 127 (2d Cir.1999) (quoting FW/ PBS, Inc. v. City of Dallas, 493 U.S. 215, 227, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (“[Wjhere the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion.”)). Where, as here, the challenged regulations are content-neutral, Greenwood Lake must meet the first two factors outlined in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). See Beal, 184 F.3d at 128. First, the regulation must require the decision maker to decide whether to issue the permit “within a specified brief period,”" }, { "docid": "1778843", "title": "", "text": "statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). The remedy if the facial challenge is successful is the striking down of the regulation and the reversal of the conviction. See Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931) (“The ... statute being invalid on its face, the conviction of the appellant ... must be set aside.”). The general rule in this circuit is that for “[a] facial challenge to be successful, [a plaintiff] ‘must establish that no set of circumstances exists under which the [law] would be valid.’” Adler v. Duval County School Board, 206 F.3d 1070, 1083-84 (11th Cir.2000) (en banc) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)); see also Jacobs, 50 F.3d at 906 n. 20 (“[w]hen a plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law could never be. constitutionally applied-.”). Some circuits have determined that a facial challenge to a prior restraint on speech for want of certain procedural safeguards satisfies that general rule. “A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, ‘every application of the statute create[s] an impermissible risk of suppression of ideas.’ ” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000) (internal quotation marks and citations omitted) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S.Ct. 596, 107 L,Ed.2d 603 (1990) (plurality opinion)); see also Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998) (“A facial challenge is also appropriate when there is a" }, { "docid": "9780770", "title": "", "text": "472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (citations and omitted). “Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as over-broad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); see also Ward v. Rock Against Rae- ism, 491 U.S. 781, 793, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that Ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity.’ ”) (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, . 755, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). “[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license.” Id. at 755-56, 108 S.Ct. 2138. In this case, Plaintiffs have standing to bring a facial challenge to the AEDPA based on their claim that it vests the Secretary with unfettered discretion. While the AEDPA does not involve a licensing scheme, per se, it operates in a similar fashion. The AEDPA allows the Secretary to determine which foreign organizations to designate as “terrorist” and are thus subject to the restrictions on providing material support. In Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), the Supreme Court analogized a criminal statute against picketing to a licensing scheme. The Court stated: One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. A like threat is inherent in a penal statute, ... which does not aim specifically at evils within the allowable area of State control but, on the contrary, sweeps within its ambit other" }, { "docid": "9686710", "title": "", "text": "1394, 79 L.Ed.2d 646 (1984). However, the U.S. Supreme Court has carved out an exception for facial challenges to statutes alleged to be violative of the First Amendment. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-756, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). In particular, a plaintiff may facially challenge a statute that allegedly vests a government official with “unbridled discretion” to decide whether to suppress protected speech. FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603; Members of the City Council for the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 2125 n. 15, 80 L.Ed.2d 772 (1984). Because Chesapeake sets forth such an allegation here, the Court finds that standing exists. III. PRIOR RESTRAINT Chesapeake primarily asserts that the Harford County licensing ordinance is an unconstitutional prior restraint on its exercise of protected speech. In resolving this case, the Court must first determine whether the ordinance is content-neutral or content-based. Although the Supreme Court has thus far refrained from categorizing licensing ordinances, FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603, it is apparent to this Court that the instant ordinance is necessarily tied to the content of adult bookstores. Indeed, licensing is required for all adult bookstores, defined by the ordinance in terms of their content. For example, § 58-l(B) defines an adult bookstore as “a commercial establishment that as its principal business purpose sells or rents ... books ... that describe or depict a sexual act or depict human genitalia in a state of sexual arousal.” The Court therefore cannot turn á blind eye to the fact that content plays a role in this licensing plan. The Court must next ascertain whether the speech in question is protected by the First Amendment. Although the subject matter referred to in § 58-l(B) has overtones of indecency, the speech in the adult bookstores falls short of obscenity, which is a species of unprotected speech. Miller v." }, { "docid": "3433363", "title": "", "text": "a facial challenge to the validity of a statute necessarily entails a challenge to the statute as applied to third parties besides the plaintiff: In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (opiniqn of O’Connor, J.) (“Although facial challenges to legislation are generally disfavored, they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as over- broad.”). “A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000); see also FW/PBS, 493 U.S. at 223-24, 110 S.Ct. 596 (opinion of O’Connor, J.) (stating that unbridled discretion includes licensing schemes that create a “ ‘risk of delay’ such that ‘every application of the statute creates an impermissible risk of suppression of ideas’ ” (quotations omitted)). Littleton’s ordinances include within their purview sexually explicit speech, and the City does not contest that this speech is protected by the First Amendment. ZJ’s challenge to Littleton’s licensing system is based both on a claim that the City vests too much discretion in licensing officials in granting or denying a license, and that the system creates a risk of delay in granting or denying a license. Thus, ZJ has standing to bring a facial challenge to the licensing system on these two grounds. It is true that the overbreadth doctrine discussed above “does not eliminate the need for the plaintiff to demonstrate its own cognizable injury in fact.” Nat’l Council for Improved Health v. Shalala, 122 F.3d 878, 883 (10th Cir.1997)." }, { "docid": "4845062", "title": "", "text": "vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad.’ ” (quoting FW/ PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990))); Kachalsky, 817 F.Supp.2d at 267 n. 32 (rejecting the argument that a statute is invalid based on analogy to First Amendment cases prohibiting “unbridled discretion” in granting permits, and explaining that while some Second Amendment “cases borrow an analytical framework, they do not apply substantive First Amendment rules in the Second Amendment context”). We have found no circuit cases that have discussed the prior restraint doctrine in the context of the Second Amendment. Hightower’s second argument — based on the overbreadth doctrine — fails for similar reasons. The over-breadth doctrine is “a second type of facial challenge,” under which a law may be invalidated under the First Amendment “as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” Stevens, 130 S.Ct. at 1587 (quoting Wash. State Grange, 128 S.Ct. at 1190 n. 6) (internal quotation marks omitted). An overbreadth challenge essentially argues that a “statute could not be enforced against [a plaintiff], because it could not be enforced against someone else.” Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). The Supreme Court has cautioned courts against allowing overbreadth challenges outside of certain limited contexts: Facial challenges of this sort are especially to be discouraged. Not only do they invite judgments on fact-poor records, but they entail a further departure from the norms of adjudication in federal courts: overbreadth challenges call for relaxing familiar requirements of standing, to allow a determination that the law would be unconstitutionally applied to different parties and different circumstances from those at- hand. See, e.g., Chicago v. Morales, 527 U.S. 41, 55-56 n. 22 [119 S.Ct. 1849, 144 L.Ed.2d 67] (1999) (plurality opinion). Accordingly, we have recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term) in relatively few settings, and, generally, on the strength of specific, reasons weighty enough" }, { "docid": "5623410", "title": "", "text": "L.Ed.2d 649 (1965). A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. See id. at 57, 85 S.Ct. 734; East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 224, reh’g denied (6th Cir.), cert. denied, 516 U.S. 909, 116 S.Ct. 277, 133 L.Ed.2d 198 (1995). The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, “ ‘every application of the statute create[s] an impermissible risk of suppression of ideas.’ ” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality op.) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 n. 15, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)) (brackets in original). Because Nightclubs claims that Paducah’s licensing scheme creates an impermissible risk of delay and lacks constitutionally-required safeguards, Nightclubs has standing to challenge the ordinance on its face. A “prior restraint” exists when speech is conditioned upon the prior approval of public officials. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (denial of use of public forum without procedural safeguards is unconstitutional prior restraint). Although prior restraints “are not unconstitutional per se,” they come to court bearing a heavy presumption against their validity. Id. at 558, 95 S.Ct. 1239 (citations omitted). Pri- or restraints are presumptively invalid because they typically involve “two evils that will not be tolerated”: (1) the risk of censorship associated with the vesting of unbridled discretion in- government officials; and (2) “the risk of indefinitely suppressing permissible speech” when a licensing law fails to provide for the prompt issuance of a license. FW/PBS, 493 U.S. at 225-27, 110 S.Ct. 596. In Freedman, the Supreme Court invalidated a Maryland film censorship statute under the First Amendment because the statute lacked necessary procedural safeguards. Freedman, 380 U.S. at 59-60, 85 S.Ct. 734. The Court held that three procedural safeguards are required to avoid constitutional infirmity. Id. at 58-59, 85 S.Ct. 734. First, the decision" }, { "docid": "4845061", "title": "", "text": "The prior restraint doctrine is not a label that may be attached to allow any facial challenge, whatever the constitutional ground. Other courts, at the district court level, agree. See Woollard v. Sheridan, 863 F.Supp.2d 462, 471, No. L-10-2068, 2012 WL 695674, at *7-8 (D.Md. Mar. 2, 2012) (to be published in F. Supp. 2d) (rejecting the argument that a licensing scheme “amounts to an unconstitutional prior restraint on the exercise of [plaintiffs] Second Amendment rights because it vests unbridled discretion in the officials responsible for issuing permits,” in part because “this Court would be hesitant to import constitutional doctrine wholesale from one field of law into another for which it was never designed”); Piszczatoski v. Filko, 840 F.Supp.2d 813, 831-32 (D.N.J.2012) (rejecting the argument that a statute is invalid under the Second Amendment if it vests “uncontrolled discretion,” in part because “[t]he general rule is that facial challenges are disfavored. It is only in light of particular censorship related concerns that ‘they have been permitted in the First Amendment context where the licensing scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad.’ ” (quoting FW/ PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990))); Kachalsky, 817 F.Supp.2d at 267 n. 32 (rejecting the argument that a statute is invalid based on analogy to First Amendment cases prohibiting “unbridled discretion” in granting permits, and explaining that while some Second Amendment “cases borrow an analytical framework, they do not apply substantive First Amendment rules in the Second Amendment context”). We have found no circuit cases that have discussed the prior restraint doctrine in the context of the Second Amendment. Hightower’s second argument — based on the overbreadth doctrine — fails for similar reasons. The over-breadth doctrine is “a second type of facial challenge,” under which a law may be invalidated under the First Amendment “as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’ ” Stevens, 130 S.Ct. at 1587 (quoting Wash. State Grange, 128 S.Ct. at" } ]

[ { "docid": "23202246", "title": "", "text": "deprived of his rights under the Fourteenth Amendment to liberty and life and that the deceased left surviving him the plaintiff as lineal next of kin, and the plaintiff sustained pecuniary loss by reason of the death of the decedent. The district court dismissed the amended complaint. I In a federal civil rights action where the person who has been deprived •of his rights has died, the action survives for the benefit of the estate if the applicable state law creates such a survival action. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136; Evain v. Conlisk, 364 F.Supp. 1188, 1191 (N.D.Ill. 1973); Holmes v. Silver Cross Hosp., 340 F.Supp. 125, 129 (N.D.Ill.1972). See also Baker v. F & F Investment, 420 F.2d 1191, 1196 n. 7 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 40, 27 L.Ed.2d 49. Illinois does provide for the survival of an action to recover damages for injury to the decedent while -he was alive (Ill.Rev.Stat. Ch. 3, § 339), and for the survival of an action to recover pecuniary losses incurred by the decedent’s next of kin due to the decedent’s death (Ill.Rev. Stat. Ch. 70, §§ 1 and 2). Under Illinois law, these actions must be brought in a representative, rather than an individual, capacity. Ill.Rev.Stat. Ch. 70, § 2; Ill. Rev.Stat. Ch. 83, § 20. In the present case, the plaintiff sued both individually and as administratrix of her son’s estate. Although the individual action must fail under Illinois law, the action brought in the plaintiff’s representative capacity is properly maintainable. II Viewing the allegations of the amended complaint and all reasonable inferences which can be drawn from them as true, we are convinced that the plaintiff has stated a cause of action under § 1983. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The defendants, as agents and employees of a state hospital, were clearly acting under color of state law. See Wheeler v. Glass, 473 F.2d 983, 985 (7th Cir." } ]

[ { "docid": "22940432", "title": "", "text": "Staras, 507 F.2d 554, 557 (7th Cir. 1974), mandates that federal civil rights actions survive for the benefit of an injured party’s estate only to the extent that the applicable state law permits such claims to survive. Looking to the Illinois Survival Act, Ill.Rev. Stat. ch. 3, § 339, the court concluded that the instant claims survived only insofar as they sought damages for the physical injuries Beard suffered. Relying on Jones v. Jones, 410 F.2d 365 (7th Cir. 1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 547, 24 L.Ed.2d 505 (1970), the court then dismissed the action altogether because the physical injury claims were barred by Illinois’s two-year statute of limitations. Ill.Rev.Stat. ch. 83, § 15. II. Survival We turn first to the question of whether the claims alleged survive Beard’s death. Plaintiff presents several theories for the survival of her action. She argues that the action as a whole survives (1) under the Illinois Survival Act, both as an action to recover damages for “injuries] to the person” and as an action “against officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments. Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir." }, { "docid": "840895", "title": "", "text": "not explicitly provide for the survival of a civil rights action. Defendants’ contention is without merit. Congress has provided that: “[I]n all cases where [federal statutes for the protection of civil rights] are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . ., the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . Civil Rights Act of 1866, 42 U.S.C. § 1988. This provision has been held to fill the gap in § 1983 caused by the death of a victim by authorizing adoption of state survival statutes. This conclusion derives from the history and purpose of the Civil Rights Acts as a means of redress for deprivations of constitutional rights. As the Court of Appeals explained in Brazier v. Cherry, 293 F.2d 401, 404 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961): “[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death. The policy of the law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence which would cripple.” [Footnote omitted.] The line of cases reaching this conclusion has been cited with approval by the Supreme Court. See Moor v. County of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Pennsylvania law provides for the survival of actions. Pennsylvania Survival Act, 20 Pa.C.S.A. §§ 3371 et seq. It is therefore clear that plaintiff may sue in her representative capacity to redress deprivations of decedent’s civil" }, { "docid": "8617567", "title": "", "text": "the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.” In effect, § 1988 sets forth a three step process for determining the applicable substantive law in civil rights cases. First, the Court must decide whether the Civil Rights Acts are “deficient” in furnishing a remedy for the vindication of a plaintiff’s civil rights. If this inquiry is answered affirmatively, we are then directed to look to state law to fill the interstices in the federal provisions. Finally, if there is state law available to fill the gap in the federal statutes, we must insure that the state law is not inconsistent with federal statutory and constitutional law. This Court has already determined that the civil rights statutes are deficient with respect to survivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, 408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. Other courts, including the Supreme Court, have reached the same conclusion. Moor v. County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596. Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153, 155. We therefore must apply Louisiana’s survivorship law unless that law “is inconsistent with the Constitution and laws of the United States.” In analyzing whether La.Civ.Code Ann. art. 2315 is incompatible with federal law, it is important to clarify the type of action we are dealing with. As the district court stressed: “We emphasize at the outset that we are not concerned with wrongful death actions for damages to others caused by the tort victim’s death. Also to be distinguished are survival of causes of action, where the tort victim dies without bringing suit, and the question is whether a party may institute suit to recover for" }, { "docid": "5018427", "title": "", "text": "in holding that the law of the state of jurisdiction is the law that applies unless it is inconsistent with Constitutional or federal law. Thus, California survivorship law governs and provides the basis for any further inquiries under section 1988. See also Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Guyton v. Phillips, 532 F.Supp. 1154, 1165 (N.D.Cal.1981). The parties do not dispute that under California Code of Civil Procedure § 377.20 this action survives the death of Ms. Williams and by reason of its provisions it may be brought by the decedent’s survivors. Section 377.20 states: “[ejxcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” Cal.Civ.Proc.Code § 377.20 (West Supp.1996). However, section 377.34 limits the recoverable damages to loss or damages the decedent incurred before death, including punitive damages, but specifically excluding pain and suffering. The remaining inquiries under section 1988, and the ones presented by this motion, are whether this limitation is inconsistent with federal law and, if so, what rule applies. Under the formulation articulated in Robertson the court must look not only to the particular federal law providing the cause of action, but also to the policies underlying it. Id. at 590, 98 S.Ct. at 1994-95. Quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386 (1969), the Court found the touchstone of the analysis to be whether the “ultimate rule adopted under § 1988 ‘is a federal rule responsive to the need whenever a federal right is impaired.’ ” Robertson, 436 U.S. at 588-89, 98 S.Ct. at 1994. The acknowledged purposes of a section 1983 action are to compensate persons who have suffered a constitutional violation and deter or prevent “official illegality”. Id. at 590-92, 98 S.Ct. at 1996. Relatively few cases have addressed whether the limitations on recovery contained in a state survivorship statute are inconsistent with the purposes of section" }, { "docid": "23196406", "title": "", "text": "1 of the proposed act was intended to establish a civil remedy in cases in which § 2 of the 1866 act created a criminal sanction. Id. Thus, \"[bjecause § 2 of the Civil Rights Act of 1866 had extended the criminal sanction to situations in which persons acting under color of state law deprived others of their life, there can be little doubt that § 1 of the Civil Rights Act of 1987 was also intended to provide a civil remedy in such cases.” Steinglass, supra, at 648; see also Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Brazier v. Cherry, 293 F.2d 401, 404 & n. 9 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). . Section 1988 does not specify when federal law is deficient or what federal law courts must look to before making a deficiency finding. See generally Eisenberg, State Law in Federal Civil Rights Cases: The Proper Scope of Section 1988, 128 U.Pa.L.Rev. 499 (1980); Kreimer, The Source of Law in Civil Rights Actions: Some Old Light on Section 1988, 133 U.Pa.L.Rev. 601 (1985); Steinglass, supra at 612-25. Nor has the Supreme Court helped us, thus far, in construing the deficiency clause. We are confident, however, that federal law, whatever its scope may be, is deficient here because the Supreme Court in Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), found it deficient in the analogous area of survival of § 1983 actions. . The Supreme Court, however, has had before it at least one § 1983 case brought by the personal representatives of decedents, that sought wrongful death damages. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), discussed in Jones, 432 U.S. at 189 n. 1, 97 S.Ct. at 2287 n. 1. As Justice White noted in dissent in Jones, ‘‘[a]lthough the question whether the personal representatives' action could be maintained under § 1983 was not before the Court, it did not disapprove of such actions in remanding the case" }, { "docid": "14222705", "title": "", "text": "be as he amplifies them in his answers to interrogatories. I Shirer moves to dismiss the case here as moot on the ground that Dean died on April 6, 1975, and that his action under 42 U.S.C. § 1983 does not survive. Counsel for plaintiff has moved to substitute Mrs. Clyde C. Dean, administratrix of the Estate of Clyde C. Dean, as the proper party to this action. The Supreme Court has noted in Moor v. County of Alameda, 411 U.S. 693, 702-03 and n. 14, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), that the question of survivability under 42 U.S.C. § 1983 is an area which is not covered by existing federal law. Although dictum, the Court suggests, “Pursuant to § 1988 state survivorship statutes which reverse the common-law rule may be used in the context of actions brought under § 1983,” and refers to Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921 (1961), 82 S.Ct. 243, 7 L.Ed.2d 136. Several circuits have stated it is appropriate for federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff’s responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra. The court, in Brazier, pointed out that while Congress has the “constitutional power to spell out a comprehensive right of survival for civil rights claims,” 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42" }, { "docid": "8617568", "title": "", "text": "rights statutes are deficient with respect to survivorship. Brazier v. Cherry, 5 Cir. 1961, 293 F.2d 401, 408, cert. denied, 1961, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136. Other courts, including the Supreme Court, have reached the same conclusion. Moor v. County of Alameda, 1973, 411 U.S. 693, 702, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596. Pritchard v. Smith, 8 Cir. 1961, 289 F.2d 153, 155. We therefore must apply Louisiana’s survivorship law unless that law “is inconsistent with the Constitution and laws of the United States.” In analyzing whether La.Civ.Code Ann. art. 2315 is incompatible with federal law, it is important to clarify the type of action we are dealing with. As the district court stressed: “We emphasize at the outset that we are not concerned with wrongful death actions for damages to others caused by the tort victim’s death. Also to be distinguished are survival of causes of action, where the tort victim dies without bringing suit, and the question is whether a party may institute suit to recover for the tort victim’s own damages.” 391 F.Supp. at 1361 (emphasis in original). Instead, we are concerned with a pending action for damages, instituted by a plaintiff on his own behalf before his death, seeking damages to redress a violation of his civil rights. Moreover, we are dealing with a situation in which the application of the relevant state survival law to a federal cause of action will leave the plaintiff without a remedy in either federal or state courts. See Moragne v. State Marine Lines, 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. This we refuse to do. Because Louisiana’s survivorship provisions would cause Shaw’s pending civil rights action to abate, we find that Louisiana law is inconsistent with the broad remedial purposes embodied in the Civil Rights Acts — laws designed to insure to all citizens “the right to be free from deprivation of constitutional civil rights.” Brazier v. Cherry, 293 F.2d at 409. We therefore decline to apply Louisiana law of survival. As the Supreme Court said in Moor v. County" }, { "docid": "8645596", "title": "", "text": "section 1983, does not “furnish suitable remedies and punish offenses against law.” Since the law of Puerto Rico provides plaintiff with a remedy for defendants’ actions, see Art. 1802, 31 L.P. R.A. sect. 5141 and 32 L.P.R.A. sect. 3083, she claims to have standing pursuant to section 1988 to recover damages for the deprivation of her husband’s civil rights. This argument is defeated by absence in the complaint of any claim under local law for which plaintiff’s wife would have a cause of action. Even if plaintiff had properly plead a cause of action under the law of Puerto Rico, section 1988 could not be used as a vehicle to obtain standing. The purpose of the applicable portion of section 1988 was explained in Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961): It reflects a purpose on the part of Congress that the redress available will effectuate the broad policies of the civil rights statutes. If the federal law is ‘suitable to carry the [policy] into effect’ resort to local law is not required. The fundamental policies behind section 1983 are twofold: to deter unconstitutional acts committed under state law and to compensate the injured party. Robertson v. Wegmann, 436 U.S. 584, 590-91, 98 S.Ct. 1991, 1995-96, 56 L.Ed.2d 554 (1978). Section 1988 was specifically addressed to and has been used almost exclusively in situations where a civil rights violation results in death or when a plaintiff dies in the course of litigation. See, Robertson, supra; Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984); Hall v. Wooten, 506 F.2d 564 (6th Cir.1974); Mattis v. Schnarr, 502 F.2d 588 (8th Cir.1974); Brazier, supra. Since section 1983 has been interpreted to confer standing on the individual alone whose civil rights were violated, in those situations where death occurs, either prior to or during litigation, the violation would go undeterred and uncompensated if the courts did not have authority to look to the local wrongful death or survivorship statute. In these cases a resort to local law is necessary to further the policies of the civil rights statutes. In the present" }, { "docid": "2852880", "title": "", "text": "F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant’s death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area: [I]t defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple. 293 F.2d at 404. The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of survival, 42 U.S.C. § 1988 requires, in light of this “deficiency” that state law be used unless it is “inconsistent with the constitution and the laws of the United States.” Courts have extended this analysis to permit incorporation of state wrongful death statutes into § 1983, through § 1988. See e.g. Spence v. Staras, 507 F.2d 554, 558 (7th Cir. 1974); Mattis v. Schnarr, 502 F.2d 588, 590-91 (8th Cir. 1974), on remand, 404 F.Supp. 643 (E.D.Mo.1975) rev’d on other grounds, 547 F.2d 1007 (8th Cir. 1976), vacated on other grounds, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977); Kalmanash v. Wolfe, Slip Opinion Civ. 1798-CSH (S.D.N.Y., Dec. 14, 1978); Smith v. Wickline, 396 F.Supp. 555, 557-61 (W.D.Okl. 1975). While § 1988 authorizes § 1983 actions after the true plaintiff’s death, the nature of the actions differ depending on whether state survival or state wrongful death law is incorporated into the federal cause of action. Survival statutes simply allow the cause of action to survive regardless of the death of a party. Accordingly," }, { "docid": "14142725", "title": "", "text": "16 L.Ed.2d 369 (1966), it may under certain limited circumstances be necessary to develop federal common law. In actions under the Civil Rights Act of 1871 courts have ordinarily looked first to state survival statutes. The reason for this is found in 42 U.S.C. § 1988, which provides that when federal laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause.... Generally these statutes have not been found deficient insofar as they permit the action to survive. Brazier v. Cherry, supra; Spence v. Staras, supra; Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Roberts v. Rowe, supra. Robertson v. Wegmann, supra, is an exception to this trend. There, although there was a Louisiana survival statute, the Supreme Court found the § 1983 action did not abate because no person with a relationship to the decedent required by the statute survived. In that ease the Fifth Circuit had found that the state law was inconsistent with federal law and created a federal common law of survival. The Supreme Court reversed, but pointed out that its holding was a narrow one. It reasoned that its decision did not adversely affect the policies underlying § 1983. The cause of action, it noted in that case, was one that arose before death and was not based upon any facts that were alleged to be the cause of or related in any way to the death. The majority was careful to point out that “We intimate no view, moreover, about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death.” 436 U.S. at 594-95, 98 S.Ct. at 1997. This" }, { "docid": "1760775", "title": "", "text": "is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . . In interpreting this statute, we consider its language and the construc tion given it by other federal courts. The language plainly grants to United States district courts the power to apply state statutes in the trial and disposition of cases within their jurisdiction when federal laws are not adapted to the protection and vindication of civil rights so long as the state law to be applied is not inconsistent with the Constitution and laws of the United States. Moreover, the majority of courts that have considered whether civil rights actions for injury to the person survive have concluded that they do by reference to the law of the forum state. E. g., Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), Perkins v. Rich, 289 F.2d 153 (8th Cir. 1961), Holmes v. Silver Cross Hospital of Joliet, Illinois, 340 F.Supp. 125 (N.D.Ill.1972), Galindo v. Brownell, 255 F.Supp. 930 (S.D.Cal.1966). See also, Davis v. Johnson, 138 F.Supp. 572 (N.D.Ill.1955), but see Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973), where an action for injury to the person was brought against the estate of a decedent. The United States Congress in other legislative schemes has not provided for the survival of statutory rights created, and the Supreme Court, in order to effect the purposes of the legislation, has held that the state law might be considered in fashioning federal law on the question of survival of the action. E. g., Cox v. Roth, 348 U.S. 207, 75 S.Ct. 242, 99 L.Ed. 260 (1955), construing the Jones Act, 46 U.S.C. § 688, and cases cited in Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); cf. Morangne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). P As we have observed, 42 U.S.C. §" }, { "docid": "1760774", "title": "", "text": "specific act of Congress, a United States district court, under 42 U.S.C. § 1988, may refer to the law of the state in which it sits in order to determine whether an action under section 1983 for injury to the person survives. Section 1988 provides in relevant part: The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter . . . for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . . In interpreting this statute, we consider its language and the construc tion given it by other federal courts. The language plainly grants to United States district courts the power to apply state statutes in the trial and disposition of cases within their jurisdiction when federal laws are not adapted to the protection and vindication of civil rights so long as the state law to be applied is not inconsistent with the Constitution and laws of the United States. Moreover, the majority of courts that have considered whether civil rights actions for injury to the person survive have concluded that they do by reference to the law of the forum state. E. g., Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), Perkins v. Rich, 289 F.2d 153 (8th Cir. 1961), Holmes" }, { "docid": "10484329", "title": "", "text": "F.2d 1003 (5th Cir.1984), and Johnson v. Rogers, 621 F.2d 300 (8th Cir.1980), argue that federal law is deficient on this issue and state law controls. Neither party has cited nor has the court found any controlling pronouncement from the Second Circuit Court of Appeals. “Whether a right of contribution [or set-off] exists on behalf of § 1983 defendants who are jointly and severally liable is a complex, open question.” M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees, § 14.14 at 314 (1986 & Supp.1987) (“§ 1983 Litigation”). The answer begins with 42 U.S.C. § 1988 which provides, in relevant part: The jurisdiction in civil ... matters conferred on the district courts by the provisions of this chapter ... for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies ... the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. “This statute recognizes that in certain areas ‘federal law is unsuited or insufficient “to furnish suitable remedies;” ’ federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ ” Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), quoting Moor v. County of Alameda, 411 U.S. 693, 703, 702, 93 S.Ct. 1785, 1792, 36 L.Ed.2d 596 (1973), quoting 42 U.S.C. § 1988. When federal law is deficient, § 1983 “invites federal courts to adopt state rules to further, but not" }, { "docid": "5018426", "title": "", "text": "States”. 42 U.S.C. § 1988(a). Neither section 1988, nor any other provision of the federal civil rights statutes governed by it, addresses the survivorship of claims and remedies upon the death of the holder of the claim. Thus, the governing statutes are deficient. Plaintiff offers two theories to fill the deficiencies of sections 1983 and 1988: either (1) federal common law should supply the rules, or (2) California law should apply except insofar as it limits damages and, therefore, is inconsistent with the purposes underlying the civil rights statutes. The federal common law approach was rejected in the leading Supreme Court decision in this area. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978). In Robertson the Court noted that there was some support for interpreting the term “common law” as used in section 1988 to mean federal common law, but found it unnecessary to resolve that question because the state survivorship statute “plainly governs this case.” 436 U.S. at 590, n. 5, 98 S.Ct. at 1995. Robertson is equally clear in holding that the law of the state of jurisdiction is the law that applies unless it is inconsistent with Constitutional or federal law. Thus, California survivorship law governs and provides the basis for any further inquiries under section 1988. See also Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Guyton v. Phillips, 532 F.Supp. 1154, 1165 (N.D.Cal.1981). The parties do not dispute that under California Code of Civil Procedure § 377.20 this action survives the death of Ms. Williams and by reason of its provisions it may be brought by the decedent’s survivors. Section 377.20 states: “[ejxcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” Cal.Civ.Proc.Code § 377.20 (West Supp.1996). However, section 377.34 limits the recoverable damages to loss or damages the decedent incurred before death, including punitive damages, but specifically excluding pain and suffering. The remaining inquiries under" }, { "docid": "2852879", "title": "", "text": "stalking abroad in disguise, while whipping and lynchings and banishment have been visited upon unoffending American citizens, the local ad- ministrations have been found inadequate or unwilling to apply the proper correction. Id. at 374. Similarly, Congressman Butler stated that: This then is what we offer to a man whose house has been burned, as a remedy; to the woman whose husband has been murdered, as a remedy; to the children whose father has been killed, as a remedy. Id. at 807. The general rule in this area, adopted by the circuits and approved by the Supreme Court, is that § 1983 actions survive the plaintiff’s death if that would be the result under the applicable state law. See Moor v. Cty. of Alameda, 411 U.S. 693, 702-03 n. 14, 93 S.Ct. 1785, 1792 n.14, 36 L.Ed.2d 596 (1973); Brazier v. Cherry, 293 F.2d 401 (5th Cir.) cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see also Duchesne v. Sugarman, 566 F.2d 817, 821 (2d Cir. 1977); Beard v. Robinson, 563 F.2d 331, 333 (7th Cir. 1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978); (Bivens action); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961) (action survived the defendant’s death); Salazar v. Dowd, 256 F.Supp. 220, 222-23 (D.Colo.1966). As stated by the Fifth Circuit in Brazier v. Cherry, the lead case in this area: [I]t defies history to conclude that congress purposely meant to assure to the living freedom from such unconstitutional deprivation but that, with like precision, it meant to withdraw the protections of the Civil Rights statutes against the peril of death. The policy of law and the legislative aim was certainly to protect the security of life and limb as well as property against these actions. Violent injury that would kill was not less prohibited than violence that would cripple. 293 F.2d at 404. The statutory mechanism that authorizes resort to state survival law to permit civil rights actions to survive the plaintiffs death is 42 U.S.C. § 1988. Because § 1983 is silent on the question of" }, { "docid": "22585474", "title": "", "text": "Tex.Rev.Civ.Stat.Ann. art. 4671-4678 (Vernon 1958 & Supp.1984). . Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958). . See Bedgood v. Madalin, 600 S.W.2d 773, 775 (Tex.1980); Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex.1963); Mitchell v. Akers, 401 S.W.2d 907, 911 (Tex.Civ.App.—Dallas 1966, writ ref’d. n.r.e.). . See Sanchez v. Schindler, 651 S.W.2d 249, 251, 253 (Tex.1983). . See, e.g., Bedgood v. Madalin, 600 S.W.2d 773, 775 (Tex.1980); see generally 15 St. Mary’s L.J. 185 (1983). . Ryland v. Shapiro, 708 F.2d 967, 975 (5th Cir.1983). . A victim’s § 1983 claims for violations of civil rights under color of state law resulting in death will survive in favor of his heirs and personal representative under Texas survival law, Tex.Rev.Civ.Stat.Ann. art. 5525 (Vernon 1958). The Texas law controls in this case since it is not inconsistent with the Constitution or federal law, 42 U.S.C. § 1988. See Wolfer v. Thaler, 525 F.2d 977, 978 & n. 1 (5th Cir.), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 800 (1976); see also Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Brazier v. Cherry, 293 F.2d 401, 405-06 (5th Cir.) (“Congress adopted as federal law the currently effective state law on the general right of survival.”), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961). . The conclusion that Webster’s rights under the constitution and federal law were invaded by the use of a throw down gun raises the issue of the relevance of a decision by this Court which is not referred to by either party in the briefs. The case is Whitehurst v. Wright, 592 F.2d 834 (5th Cir.1979), which involved a claim of civil rights violation brought by the mother of a victim of a police shooting in which a throw down gun was used. In that casé we held that the use of the throw down gun did not constitute a constitutional violation of the rights of the deceased because “[a]fter death, one is no longer a person within our constitutional and statutory framework and has no rights of" }, { "docid": "14142724", "title": "", "text": "Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 883 (1974); American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). Courts that have found federal statutory law inadequate and have concluded that there is a federal maritime survival action have included pain and suffering as an element of recovery. Barbe v. Drummond, 507 F.2d 794 (1st Cir. 1974); Law v. Sea Drilling Corp., 510 F.2d 242, rehearing denied, 523 F.2d 793 (5th Cir. 1975). Consideration was given to the deficiencies of federal and state statutory provisions, the general common law, the recovery provided for by the majority of state survival statutes, and the policy of uniformity. The Supreme Court reiterated this principle in City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). Where there is a “significant conflict between some federal policy or interest and the use of state law,” id. at 1790, quoting, Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 68, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966), it may under certain limited circumstances be necessary to develop federal common law. In actions under the Civil Rights Act of 1871 courts have ordinarily looked first to state survival statutes. The reason for this is found in 42 U.S.C. § 1988, which provides that when federal laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause.... Generally these statutes have not been found deficient insofar as they permit the action to survive. Brazier v. Cherry, supra; Spence v. Staras, supra; Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Roberts v. Rowe, supra. Robertson v." }, { "docid": "22405978", "title": "", "text": "13 (1871). Section 1986 predicates liability upon (1) knowledge that any of the conspiratorial wrongs are about to be committed, (2) power to prevent or to aid in preventing the commission of those wrongs, (3) neglect to do so, where (4) the wrongful acts were committed, and (5) the wrongful acts could have been prevented by reasonable diligence. A finding of a Section 1985 conspiracy is a necessary prerequisite to a finding of liability under Section 1986. Williams v. St. Joseph Hospital, 629 F.2d 448, 451-452 (7th Cir.1980); Hamilton v. Chaffin, 506 F.2d 904, 913-914 (5th Cir.1975). The statutory mechanism that authorizes resort to state law to provide enlightenment as to the parameters of actions under these statutes is 42 U.S.C. § 1988 which, where the civil rights laws are “deficient,” invokes state law unless “inconsistent with” the Constitution and federal law. See Robertson v. Wegmann, 436 U.S. 584, 590, 98 S.Ct. 1991, 1995, 56 L.Ed.2d 554. Thus Section 1988 establishes a three-step process for the selection of the appropriate substantive law in civil rights cases. First, the court must decide whether the civil rights acts are “deficient” in furnishing a particular rule. If this inquiry is answered affirmatively, state law is examined to fill the interstices in the federal provisions. Often there is no state law directly on point, so that only the provisions most closely analogous to federal civil rights law can be considered. Finally, the state law must be disregarded in favor of the federal law if the state law is inconsistent with the meaning and purpose of federal statutory and constitutional law. See Robertson v. Wegmann, 436 U.S. at 587-590, 98 S.Ct. at 1993-1995; Heath v. City of Hialeah, 560 F.Supp. 840, 841 (S.D.Fla. 1983). In resolving questions of inconsistency between federal and state law raised under Section 1988, federal statutes and constitutional provisions must of course be considered, but also “the policies expressed in [them].” Robertson v. Wegmann, 436 U.S. at 590, 98 S.Ct. at 1995 (quoting Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386). Of" }, { "docid": "14222706", "title": "", "text": "federal courts to look to state law to determine whether a § 1983 action survives: Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. den., 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); see Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974). And in Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973), in which this court looked to state law to ascertain a sheriff’s responsibility in a § 1983 action for the actions of his subordinates, we noted, at page 242, that in questions of survivability of a § 1983 cause of action, federal courts have relied on state law, citing Brazier v. Cherry, supra. The court, in Brazier, pointed out that while Congress has the “constitutional power to spell out a comprehensive right of survival for civil rights claims,” 293 F.2d at 406, Congress has not exercised this power and therefore resort must be taken to state law, by authority of 42 U.S.C. § 1988. We thus turn to the law of South Carolina to determine if Dean’s cause of action survives. At common law, actions in tort did not survive. Carver v. Morrow, 213 S.C. 199, 48 S.E.2d 814 (1948); Mattison v. Palmetto State Life Ins. Co., 197 S.C. 256, 15 S.E.2d 117 (1941); see Moor, 411 U.S. at 702, n. 14, 93 S.Ct. 1785. However, the South Carolina legislature has enacted a provision for survival of injuries to the person. “Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding.” S.C.Code § 10-209. Exceptions to such survivability of actions for personal injuries are actions for malicious prosecution, slander, fraud and deceit. See" }, { "docid": "22940433", "title": "", "text": "officers for misfeasance, malfeasance, or non-feasance”; (2) under Illinois common law; and (3) under federal common law. We hold, as a matter of federal law, that under Illinois law the action survives “against officers for misfeasance, malfeasance or non-feasance” and thus need not consider plaintiff’s other arguments. Neither the Civil Rights Acts nor the Supreme Court’s decision in Bivens speaks to the abatement or survival of actions brought thereunder. Faced with the absence of a governing federal rule of decision, most courts that have considered the question of the survival of federal civil rights claims have looked to state law, either on the authority of 42 U.S.C. § 1988 or simply because reference to state law obviated the need to fashion an independent federal common law rule. E.g., Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Hall v. Wooten, 506 F.2d 564 (6th Cir. 1974); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir. 1961). At least one court has found it necessary to fashion an independent federal common law rule when state law, which would have defeated the survival of the federal claim, was deemed inconsistent with the strong federal policy of insuring the survival of federal remedies for violations of federal civil rights. Shaw v. Garrison, 545 F.2d 980 (5th Cir. 1977). Because we believe the borrowing of state law in the circumstances of this case is completely consistent with the federal policies underlying Bivens and the Civil Rights Acts, we have no occasion to fashion an independent federal common law rule here. With respect to plaintiff’s civil rights claims, 42 U.S.C. § 1988 authorizes our reference to state law insofar as it is “not inconsistent with the Constitution and laws of the United States.” With respect to plaintiff’s Bivens claim, the adoption of state law likewise seems warranted since it is consistent with the federal policies underlying Bivens. The applicable Illinois law that we adopt as the governing federal rule is found in the Illinois Survival" } ]

[ { "docid": "19783149", "title": "", "text": "the defendant sprayed victims with mace or pepper spray, in neither did we hold that bodily injury could be presumed simply because mace or pepper spray was used. In both cases, application of the bodily injury enhancement turned on a statement from the victim who suffered injury, or a person who witnessed the injury first-hand. See Taylor, 135 F.3d at 481-82 (supervisor’s first-hand account of tellers’ injuries was sufficiently reliable so that sentencing judge “could properly make the factual finding” regarding bodily injury); Robinson, 20 F.3d at 278 (teller’s statement that she suffered injuries was sufficient evidence to apply enhancement). See also U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (enhancement applicable if “victim sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A) (bodily injury is “any significant injury,” including those that are “painful and obvious”). In this case, the judge properly followed the Guidelines, basing his finding of bodily injury on the “burning sensation” the teller experienced in her eyes, and that she was unable to wear contact lenses. He found her statement, as relayed by the PSR, sufficiently reliable. Thus, the sentencing judge appropriately applied the bodily injury enhancement because he determined that the teller had a painful and obvious injury, not simply because Maiden used pepper spray. III. CONCLUSION There was sufficient evidence to determine that Maiden inflicted bodily injury during the commission of his crime and the court properly applied the two-point enhancement under § 2B3.1(b)(3)(A). We Affirm. . The term \"Mace” is a trade name for a particular brand of pepper spray. However, mace also refers to a more potent form of tear gas known as alpha-chloroacetophenone, or CN gas, typically available only to law enforcement or the military. See U.S. Centers For Disease Control and Prevention, National Institute for. Occupational Safety and Health, Pocket Guide To Chemical Hazards 61 (2007). But the term is most commonly used as a generic word for pepper spray. See, e.g., United States v. Robinson, 20 F.3d 270, 278 (7th Cir.1994); People v. Runge, 346 Ill. App.3d 500, 282 Ill.Dec. 13, 805 N.E.2d 632, 637-38 (2004)(describing pepper spray as \"mace”)." } ]

[ { "docid": "12077306", "title": "", "text": "distribution of approximately 1.2 kilograms of crack cocaine, resulting in a base offense level of 36. The district court found that two offense levels should be added because Brown possessed a firearm during the course of his drug distribution activities, resulting in a final offense level of 38. With his Criminal History Category of I, Brown’s advisory Sentencing Guidelines range was 235 to 293 months’ imprisonment. App. Vol. 8 at 55-63. The district court then considered Brown’s argument regarding the crack versus powder cocaine Sentencing Guidelines disparity. The district court found that the disparity entitled Brown to a downward variance of his final offense level by four levels to 34, reducing his advisory Sentencing Guidelines range to 151 to 188 months’ imprisonment. Id. at 65-68. The district court then sentenced Brown to 165 months* imprisonment. On direct appeal, Brown argued that the district court erred by “considering evidence of cocaine sales proven only by a preponderance of the evidence at sentencing.” Brown, 212 F. App’x at 738. We concluded that Brown’s argument was foreclosed by United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.2005), which we characterized as holding “that a district court is not bound by the findings of the jury at sentencing. Rather, sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard.” Brown, 212 F. App’x at 741. See also United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir.2008) (holding that there is no Booker error when a district court uses a preponderance of the evidence standard to determine the appropriate Sentencing Guidelines range as long as the Sentencing Guidelines are considered advisory); United States v. Townley, 472 F.3d 1267, 1276 (10th Cir.2007) (“Appellant incorrectly ar gues that Booker error occurs any time a district court enhances a sentence based on facts not found by a jury. Rather, after Booker, a district court is not precluded from relying on judge-found facts in determining the applicable Guidelines range so long as the Guidelines are considered as advisory rather than mandatory.”); United States v. Rodriguez-Felix, 450 F.3d 1117," }, { "docid": "3051509", "title": "", "text": "also indicted under 18 U.S.C. § 1153, which applies to ''[ojffenses committed within Indian Country” and places such offenses within the exclusive jurisdiction of the federal government. Id. § 1153(a) (\"Any Indian who commits against the person ... of another Indian or other person any of the following offenses, namely, ... assault resulting in serious bodily injury ... within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”). . Tindall argues the district court should have applied the beyond a reasonable doubt standard to facts necessary to support a seven-level enhancement for causing a life-threatening injury. The argument is without merit. We have repeatedly explained, \"[b]ecause the post-Booker Guidelines are discretionary, a district court may continue to find [sentencing] facts ... by a preponderance of the evidence.” United States v. Hall, 473 F.3d 1295, 1312 (10th Cir.2007) (citing United States v. Rodriguez-Felix, 450 F.3d 1117, 1130-31 (10th Cir.2006)). The Supreme Court's recent decision in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), on which Tindall relies, does not change our post-Booker jurisprudence. See United States v. Trujillo, 247 F. App’x 139, 144 (10th Cir.2007) (\"Cunningham does nothing more than reaffirm the holding of Booker as it relates to a mandatory sentencing scheme. It does nothing to undermine this court's post -Booker jurisprudence or to preclude a sentencing court from engaging in judicial factfinding under the now-advisory Guidelines.”). Tindall seeks to malee Cunningham applicable by arguing that to conclude he caused a life-threatening injury would require going beyond his plea, which only addressed serious bodily injury under 18 U.S.C. § 113(a)(6). The argument yet again misunderstands the interplay between the charged statute and the Guidelines. . The other cases cited by Tindall are similarly unhelpful. The examples do not show whether the government sought or the district court considered the life-threatening enhancement at issue here." }, { "docid": "23387076", "title": "", "text": "cmt. background. . The words \"the nature of” were removed from the Statutory Index by Amendment 591, effective November 1, 2000. U.S.S.G. App’x C para. 591. . To the extent that some of our cases rely on the excised language (directly or indirectly) to suggest that relevant conduct may be used to select the appropriate guideline pursuant to U.S.S.G. § lB1.2(a) and the Statutory Index, they have been superseded by this amendment. See, e.g., United States v. Lomow, 266 F.3d 1013, 1019 n. 2 (9th Cir.2001) (quoting, in dicta, Crawford's reference to the later-excised language and citing United States v. Cambra, 933 F.2d 752 (9th Cir.1991), which relies on superseded language); United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997), overruled on other grounds by United States v. Heredia, 483 F.3d 913 (9th Cir.2007); United States v. Van Krieken, 39 F.3d 227, 230 (9th Cir. 1994); United States v. Hanson, 2 F.3d 942, 947 (9th Cir. 1993); Cambra, 933 F.2d at 754-55; cf. United States v. Aragbaye, 234 F.3d 1101, 1104 (9th Cir.2000) (applying 1997 guidelines). . Section lB1.2(a) provides, in relevant part: Determine the offense guideline section in Chapter Two (Offense Conduct) applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted).... Refer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction.... For statutory provisions not listed in the Statutory Index, use the most analogous guideline. See § 2X5.1 (Other Offenses). U.S.S.G. § IB 1.2(a). . Section lB1.2(a) was amended effective November 1, 2000, to remove the word \"most”. U.S.S.G. App’x C para. 591 (2000). While this amendment makes its language appear less like § 2X5.1, it was, as noted above, \"intended to emphasize that the sentencing court must apply the offense guideline referenced in the Statutory Index.” Id. Thus, while the amendment makes the language of §§ IB 1.2(a) and 2X5.1 slightly less analogous, it also strengthens the underlying point: the offense of conviction and its elements are" }, { "docid": "17083245", "title": "", "text": "[the] terms of [Padilla’s] imprisonment” because he “ha[d] demonstrated through his conduct that he’s really not deterred by a significant term of imprisonment.” App’x 55. The District Court also noted that it “ha[d] no real hope that [Padilla was] not going to try to turn around and come right back into the United States after any term of imprisonment that he serves,” id. at 56, but emphasized that Padilla needed to “get the message” that he could not return to the United States, id. We are mindful that Section 5Dl.l(c) was not explicitly discussed at the sentencing hearing and that the District Court did not specifically state that supervised release (as opposed to Padilla’s sentence generally) was designed to provide an additional measure of deterrence. Nevertheless, it is clear that the District Court (1) was aware of the amended version of Section 5Dl.l(c), (2) considered Padilla’s specific circumstances and the Section 3553(a) factors, and (3) was convinced that additional deterrence was needed. See App’x 55-59. The District Court then imposed a sentence including supervised release based on its consideration of the Section 3553(a) factors and its factual findings. In other words, the District Court properly calculated the Guidelines range, treated the range as appropriately advisory, considered the Section 3553(a) factors, selected a sentence based on facts that were not clearly erroneous, and adequately explained its chosen sentence, which was in the Guidelines range. Robinson, 702 F.3d at 38. Nothing more was required. Cf. United States v. Margiotti, 85 F.3d 100, 105 (2d Cir.1996) (noting that, in the context of sentencing, the “district court’s failure to expressly invoke [the specific Guidelines provision] or its accompanying commentary cannot itself suggest that the court’s approach was in error'’). In these circumstances, we conclude that the District Court did not err, much less plainly err, in sentencing Padilla to, inter alia, a three-year term of supervised release. This conclusion is supported by precedent from our Circuit, see United States v. Sero, 520 F.3d 187, 192 (2d Cir. 2008) (rejecting a challenge to a “‘seemingly automatic,’ ‘errant,’ and ‘unreasonable’ term of supervised release” where “the" }, { "docid": "5583395", "title": "", "text": "order denying the Trustee’s motion for summary judgment, the jury's verdict in the California federal district court was that the transfer of money was done \"with the actual intent to hinder, delay, or defraud.” Order Denying Plaintiff's Motion for Summary Judgment at 10, in App’x at 1590. Therefore, the Trustee must still show that Mr. Vickery \"act ed with the subjective intent to deceive the creditor.’’ In re Johnson, XII B.R. at 169. . Admittedly, nondischargeable debt under § 523(a)(2)(A) is not limited to the actual value a debtor obtains through fraud, but includes also punitive and compensatory damages. See Tanner v. Barber (In re Barber), 326 B.R. 463, 467 (10th Cir. BAP 2005) (\"As a matter of law, nondischargeable debt under § 523(a)(2)(A) is not limited to the actual value a debtor obtains through fraud, but includes punitive and compensatory damages. Therefore, when the bankruptcy court found that the debt was nondischargeable under § 523(a)(2)(A), it found that liability for all damages flowing from the fraud was nondis-chargeable.”) (citation omitted). . We use the phrase “misrepresentation” as defined by the factors set out by the Tenth Circuit in Young and discussed above. We do not mean to imply, however, that the Trustee could not show actual fraud to IIAP under § 523(a)(2)(A), or that he did not show willful and malicious injury from Mr. Vickery’s intent to injure IIAP under § 523(a)(6). Whether the Trustee properly proved his claim under § 523(a)(6) will be decided in the related appeal pending in the United States District Court for the District of Colorado in Case No. 12-cv-01891. .Complaint at ¶¶ 53-56, in App’x at 16. . Plaintiff's Memorandum in Support of Motion for Summary Judgment at 27, in App’x at 132. . Order Denying Plaintiff's Motion for Summary Judgment at 12, in App’x at 1592. . Findings of Fact, Conclusions of Law, and Ruling at 6-7, in App’x at 3247-48. The Trustee did not appeal this portion of the bankruptcy court’s ruling. . Id. at 7, in App’x at 3248. . Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.1982)." }, { "docid": "1805035", "title": "", "text": "advanced by the government.” Id. at 291, 2017 WL 2918840 at *9. . App’x 629-30. . See McDonnell, 136 S.Ct. at 2371-72. . App’x 629 (emphasis added). . See, e.g., United States v. Rosen, 716 F.3d 691, 700 (2d Cir. 2013); see also App'x 599 (documenting that Silver conceded that his proposed instruction was supported only by “out-of-circuit authority”). . Silver, 203 F.Supp.3d at 381. . United States v. Sheehan, 838 F.3d 109, 121 (2d Cir. 2016) (quoting Heder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). . Quattrone, 441 F.3d at 181. . In Boyland, we affirmed the defendant’s conviction despite finding that the jury instructions were erroneous under McDonnell. We note, however, that in addition to the clear factual differences of that case, Boyland did not apply a harmless error standard of review because the defendant in that case did not object to the jury instructions. Boyland, 862 F.3d at 287-89, 290-92, 2017 WL 2918840, at *6-*7, *9-*10. . 18 U.S.C. § 3282. . The other acts proven by the Government—approving the HCRA grants, helping Dr. Taub’s daughter obtain an unpaid internship with a state court judge, and approving the grant to the Shalom Task Force—all occurred well outside of the statute of limitations and by themselves cannot support Silver's conviction. Silver does not dispute that the HCRA grants and the Shalom Task Force grant are “official acts\" as defined by the Supreme Court in McDonnell. Silver’s intervention on behalf of Dr, Taub's daughter to secure an unpaid internship, however, is not as clearly .“official.” We need not reach that question since this intervention occurred outside the statute of limitations period, . See Addendum A. . App'x 706. . McDonnell, 136 S.Ct. at 2372. . Id. at 2369. In Boyland, we affirmed in part because, in exchange for money, \"Boy-land agreed to ensure that favorable governmental decisions would be made, whether for licensing, work contracts, zoning, or funding.” Boyland, 862 F.3d at 292, 2017 WL 2918840, at *10, That agreement, however, was far more explicit than the offer made by Silver here" }, { "docid": "1805034", "title": "", "text": "marks omitted). . United States v. Finazzo, 850 F.3d 94, 105 (2d Cir. 2017) (internal quotation marks omitted). . Quattrone, 441 F.3d at 177 (internal quotation marks omitted). . App'x 629 (emphasis added). . Tr. 2857 (emphasis added). . In United States v. Boyland, we recently rejected overbroad jury instructions that did not comport with McDonnell. No. 15-3118, 862 F.3d 279, 2017 WL 2918840 (2d Cir. My 10, 2017). Specifically, we rejected an honest services fraud instruction defining an official act as “decisions o[r] actions generally expected of a public official, including but not limited to contacting or lobbying other governmental agencies, and advocating for his constituents,” and a Hobbs Act extortion instruction stating that the jury needed to find that the defendant \"knew that any money he accepted was offered in exchange for a specific exercise of [the defendant’s] official powers.” Id. at 287, 289-92, 2017 WL 2918840 at *6, *8-*9. We similarly reject the official act instructions given at Silver’s trial because of the \"constitutional concerns stemming from the breadth of the interpretation advanced by the government.” Id. at 291, 2017 WL 2918840 at *9. . App’x 629-30. . See McDonnell, 136 S.Ct. at 2371-72. . App’x 629 (emphasis added). . See, e.g., United States v. Rosen, 716 F.3d 691, 700 (2d Cir. 2013); see also App'x 599 (documenting that Silver conceded that his proposed instruction was supported only by “out-of-circuit authority”). . Silver, 203 F.Supp.3d at 381. . United States v. Sheehan, 838 F.3d 109, 121 (2d Cir. 2016) (quoting Heder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). . Quattrone, 441 F.3d at 181. . In Boyland, we affirmed the defendant’s conviction despite finding that the jury instructions were erroneous under McDonnell. We note, however, that in addition to the clear factual differences of that case, Boyland did not apply a harmless error standard of review because the defendant in that case did not object to the jury instructions. Boyland, 862 F.3d at 287-89, 290-92, 2017 WL 2918840, at *6-*7, *9-*10. . 18 U.S.C. § 3282. . The other acts" }, { "docid": "2425127", "title": "", "text": "warrant the reasonable belief that someone within the home is “aware of the arrest outside the premises” and “might destroy evidence, escape or jeopardize the safety of the officers or the public.” United States v. Oguns, 921 F.2d 442, 446 (2d Cir.1990) (internal quotation marks omitted). Here, whether Guerrero’s arrest occurred inside his home or just outside of it, we find no error in the District Court’s conclusion that the protective sweep was justified under the circumstances. Under the Fourth Amendment’s consent exception, “warrantless entry and search are permissible if the authorities have obtained the voluntary consent of a person authorized to grant such consent.” United States v. Elliott, 50 F.3d 180, 185 (2d Cir.1995). To be valid, consent must be voluntary and therefore cannot “be coerced, by explicit or implicit means, by implied threat or covert force.” United States v. Snype, 441 F.3d 119, 131 (2d Cir.2006) (internal quotation marks omitted) (quoting Schneckloth v. Bustamante, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). We do “not reverse a finding of voluntary consent except for clear error.” United States v. Moreno, 701 F.3d 64, 76 (2d Cir.2012) (internal quotation marks omitted). Here, based on the record, including the District Court’s credibility determinations, we find no such error. Conclusion We have considered all of Guerrero’s arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED, but the matter is REMANDED for the sole purpose of making a clerical correction to the judgment’s description of Count 1 by replacing “844(e)(1)(A)” with “848(e)(1)(A)”. . The record reflects a discrepancy regarding the date of the jury verdict. Compare App'x 15, 24, and 525 (indicating June 4, 2010), with App’x 18, 22, 421, and 423 (indicating June 7, 2010). We rely on the trial transcript, which indicates the correct date to be June 7, 2010. See App'x 402, 415-19. . The judgment contains a typographical error. It misidentifies Count 1 as pursuant to § 844(e)(1)(A), see App’x 553, but both counts are in fact pursuant to § 848(e)(1)(A), see App’x" }, { "docid": "23606933", "title": "", "text": "In cases in which “the handcuffing is permissible yet the manner of handcuffing may render the application of force excessive,” “the Graham factors are less helpful in evaluating the degree of force applied.” Fisher v. City of Las Croces, 584 F.3d 888, 896 (10th Cir.2009). In these cases, then, “an examination of the resulting injury supplements our inquiry.” Id. at 897; see also id. at 902 (Gorsuch, J., concurring) (noting that we examine the resulting injury in tight-handcuffing cases in order to “fill a small analytical void that Graham left open”). And in order to succeed on such a claim, a plaintiff must show “some actual injury that is not de minimis, be it physical or emotional.” Cortez, 478 F.3d at 1129; see also Fisher, 584 F.3d at 899 (concluding that this standard applies “when the excessive force claim involves the officers’ actions in applying handcuffs — a manner of handcuffing claim”). In this case, Ms. Koch’s excessive-force claim concerns the manner in which Officer Beech applied handcuffs on her during the arrest. For example, in her complaint she alleges that Officer Beech “placed her in handcuffs too tight and caused injury to [her] wrists.” (Aplt. App’x at 285.) Consistent with this allegation, in opposing Officer Beech’s motion for summary judgment, she submitted evidence of injury as to her arms and wrists. (See Aplt. App’x at 31 (citing as evidence of injury hospital reports and photographs); id. at 149 (hospital report classifying complaint as “some sores on her wrists and arms” and stating that there were “[n]o other associated symptoms or modifying factors”); id. at 203-05 (photographs of Ms. Koch’s arms and wrists).) Thus, to succeed on her claim, Ms. Koch must show an actual inju ry that is not de minimis. She has not done so. As cited above, the only evidence Ms. Koch submitted to support her claims of injury were hospital reports and photographs of her arms and wrists. The earliest emergency room report, dated four days after her arrest, stated that her wrist and arm injuries “appeared] to be just superficial abrasions.” (Id. at 151.) And" }, { "docid": "17054606", "title": "", "text": "subsections of section 2B3.1(b). The Application Note serves only to describe what the guideline provisions require, not to impose additional limitations not contained within the text of the guidelines. The district court enhanced Mr. Perkins’ sentence nine levels under sections 2B3.1(b)(2) and (3). The court thus did not impose excessive enhancements to Mr. Perkins’ sentence for weapon involvement and injury in violation of the guidelines. III. Mr. Perkins next contends the district court erred in increasing his sentence by two levels for bodily injury sustained by the security guard because the guard’s injury was not sufficiently “significant” within the meaning of the guidelines. The district court’s determination of the significance of a bodily injury is a finding of fact .we review for clear error. See United States v. Lanzi 933 F.2d 824, 827 (10th Cir.1991). The sentencing guidelines define “bodily injury” as “any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” U.S.S.G. § 1B1.1, comment, (n. 1(b)). “[T]o be ‘significant’ an injury need not interfere completely with the injured person’s life but cannot be wholly trivial and, while it need not last for months or years, must last for some meaningful period.” United States v. Lancaster, 6 F.3d 208, 209 (4th Cir.1993) (per curiam). Injuries that are “painful and obvious” but that do not require medical attention may nevertheless constitute “bodily injuries” justifying application of a sentence enhancement. See United States v. Hamm, 13 F.3d 1126, 1128 (7th Cir.1994). Courts have held visible Injuries such as bumps, bruises, and redness or swelling to constitute “bodily injury.” See id.; United States v. Greene, 964 F.2d 911, 912 (9th Cir.1992) (per curiam). Here the district court based its finding of bodily injury upon information in the presentence report indicating that the security guard sustained a “small laceration and bruising” and that he experienced continued neck and shoulder pain causing him to seek chiropractic treatment. We agree with Mr. Perkins that it is the actual nature of the injury sustained and not generalized statements concerning the nature of" }, { "docid": "6354360", "title": "", "text": "violence under Section 924(c)); Howard, 650 Fed.Appx. at 468 (same). . 136 S.Ct. at 2248. . Id. at 2249. . Id. (citation omitted). The Supreme Court explains this phenomenon in the ACCA context, using the following illustration: A state burglary law prohibits \" 'the lawful entry or the unlawful entry' of a premises with intent to steal, so as to create two different offenses.... If the defendant were convicted of the offense with unlawful entry as an element, then his crime of conviction would match generic burglary and count as an ACCA predicate; but, conversely, the conviction would not qualify if it were for the offense with lawful entiy as an element.” Id. . 136 S.Ct. at 2249. . Maj. Op. at 142 (quoting Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013)); see also United States v. Brown, 765 F.3d 185, 190 (3d Cir. 2014) (\"It bears repeating that the modified categorical approach is 'applicable only to divisible statutes.' ”). . 18 U.S.C. § 1951(a). . Appellant Br. at 3 (\"Was Mr, Robinson wrongly convicted of brandishing a firearm under 18 U.S.C. § 924(c)(3), since Hobbs Act robbery, 18 U.S.C. § 1951(b), is not a categorical crime of violence ... ?”). . Mathis, 136 S.Ct. at 2249. . Id. at 2257 (internal quotation marks omitted), . See, e.g„ App’x at 32-33 (indictment charging Robinson with “unlawfully [talcing and obtaining] approximately $100 United States currency, property of Subway, from the person or in the presence of J.H., an employee of Subway known to the grand jury, and against J.H.’s will, by means of actual and threatened force, violence, and fear of injury, immediate and future, to her person and property, that is, by brandishing a handgun and using the handgun to threaten and intimidate the victim J.H.”). .App’x at'535. . 18 U.S.C. § 1951(b)(1). . Hill, 832 F.3d at 141-42 (citing Johnson v. United States, 559 U.S. 133, 139-40, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). . Robinson argues that a Hobbs Act robbery cannot be a crime of violence because a defendant could" }, { "docid": "23066361", "title": "", "text": "to determine whether Cruz is, in fact, guilty of the charges levied, and the mere fact that he proclaims innocence is an insufficient basis upon which to determine that the charges are pretextual. See, e.g., Tadeo v. INS, No. 94-70643, 1996 WL 207141, at *2 (9th Cir. Apr.26, 1996) (unpublished memorandum); Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir.1994). According to the objective record evidence that Cruz himself introduced, he was a leader of or spokesperson for the peasant farmer group at Nueva Linda, and the confrontation between that group and the police did turn extremely violent, resulting in several deaths. Even crediting Cruz’s testimony that he did not harm any police officers and was unarmed, Guatemala has the right “to protect [itself] from criminals,” Perkovic, 33 F.3d at 622, which includes bringing charges against and prosecuting those that it suspects are guilty of legitimate crimes. Moreover, Cruz has failed to show that he would be unable to contest these “baseless” charges in Guatemala. Although Cruz did introduce testimony from Harry Vanden, Ph.D., an expert in Guatemalan political conflicts, that Cruz’s status as a peasant farmer made the likelihood of a “fair trial” in Guatemala “very, very low[,]” Pet. App’x at 93 (Vanden Test.), the IJ only partially credited this testimony because “Dr. Vanden was not able to back up some of his statements with specific instances,” Pet. App’x at 25 (IJ Decision), and appeared to advocate on behalf of the Cruz family, as opposed to acting as an objective expert. The U.S. State Department 2006 Country Report, which was also submitted as evidence, likewise provides little support for the conclusion that Cruz’s trial would be unfair or that he would be unable to make his claim of innocence before a Guatemalan tribunal. See Pet. App’x at 172-73 (U.S. Dep’t State Country Report 2006). The Guatemalan “constitution provides for the right to a fair, public trial, the presumption of innocence, the right to be present at trial, and the right to counsel.” Id. at 173. And although there were some reports of “corruption, ineffectiveness, and manipulation of the judiciary,”" }, { "docid": "16428123", "title": "", "text": "enhancement for \"permanent or life-threatening bodily injury” even if the physical injuries resulting from the maltreatment were not themselves life-threatening or permanent. Notably, however, that case involved a carjacking where the victim was thrown into a car trunk, beaten repeatedly over the head with a metal pipe, and left for dead outdoors in bitterly cold weather. While the victim, miraculously, did not suffer permanent or life-threatening injuries, that crime bore considerable resemblance to the kidnapping example described in the Guideline Commentary. In contrast, the crime here, while committed with the most brutal and fatal of intentions, did not inflict the sort of punishing physical abuse described in the commentary’s kidnapping example and perpetrated in the Morgan case. For an application of a sentencing enhancement for \"permanent or life-threatening bodily injury” in a factual situation similar to that in Morgan, see United States v. Williams, 258 F.3d 669, 673-74 (7th Cir.2001). . Some courts faced with the question of whether psychological injury can constitute “bodily injury” for the purposes of the sentencing enhancement for \"serious bodily injury” have declined to decide the issue. See, e.g., United States v. Sawyer, 115 F.3d 857, 860 n. 2 (11th Cir.1997) (finding no \"bodily injury” in the instant case, but declining to decide the question more generally); United States v. Lanzi, 933 F.2d 824, 827 (10th Cir.1991) (same). . In United States v. Rivera, 83 F.3d 542, 548 (1st Cir.1996), the court found that a victim's statement to a probation officer that a carjacking and rape \"ha[d] had a devastating effect on her life, family, and consensual relationship” was a \"generalit[y]” that, when combined with a lack of evidence that she sought professional help, \"f[e]ll short of proof measuring up to 'protracted ... impairment of ... mental faculty' sufficient to justify an additional ten-year sentence” under the carjacking statute’s definition of “serious bodily injury.” On remand, the trial court resen-tenced the defendant, applying the enhancement after finding \"protracted impairment of mental faculties]” based upon new evidence of the nature, severity, and longevity of the victim's post-traumatic stress. The First Circuit affirmed. See United States v." }, { "docid": "2425128", "title": "", "text": "consent except for clear error.” United States v. Moreno, 701 F.3d 64, 76 (2d Cir.2012) (internal quotation marks omitted). Here, based on the record, including the District Court’s credibility determinations, we find no such error. Conclusion We have considered all of Guerrero’s arguments on appeal and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED, but the matter is REMANDED for the sole purpose of making a clerical correction to the judgment’s description of Count 1 by replacing “844(e)(1)(A)” with “848(e)(1)(A)”. . The record reflects a discrepancy regarding the date of the jury verdict. Compare App'x 15, 24, and 525 (indicating June 4, 2010), with App’x 18, 22, 421, and 423 (indicating June 7, 2010). We rely on the trial transcript, which indicates the correct date to be June 7, 2010. See App'x 402, 415-19. . The judgment contains a typographical error. It misidentifies Count 1 as pursuant to § 844(e)(1)(A), see App’x 553, but both counts are in fact pursuant to § 848(e)(1)(A), see App’x 27-28, 415. .Guerrero’s challenges to his conviction implicate questions of statutory interpretation, which are questions of law that we review de novo. See United States v. Santos, 541 F.3d 63, 67 (2d Cir.2008). . Of course, a defendant need not be \"actively engaged in the distribution of drugs in order to be convicted under the drug-related murder prong of section 848(e)(1)(A). The defendant need only be engaging in an offense punishable under section 841(b)(1)(A), which includes conspiracy to commit such an offense.” Santos, 541 F,3d at 68 (citation omitted) (internal quotation marks omitted). . Indeed, courts of this Circuit have held the same. See, e.g., Soler v. United States, No. 05 CR. 165 LAP, 2015 WL 4879170, at *22 (S.D.N.Y. Aug. 14, 2015); United States v. Dames, No. 04 CR. 1247 PAC, 2007 WL 1032257, at *1 (S.D.N.Y. Mar. 30, 2007); United States v. Martinez-Martinez, No. 01 CR 307, 2001 WL 1287040, at *2 (S.D.N.Y. Oct. 24, 2001)." }, { "docid": "17543531", "title": "", "text": "claim against the third party, which only the creditor ... can enforce. Steinberg v. Buczynski, 40 F.3d 890, 893 (7th Cir.1994). Put another way, “when creditors ... have a claim for injury that is particularized as to them, they are exclusively entitled to pursue that claim, and the bankruptcy trustee is precluded from doing so.” Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir.1995). In light of these principles, we note that the parties have not objected, nor could they have objected, to the plain text of the injunction. The injunction, by its own terms, is limited to third-party claims based on derivative or duplicative liability or claims that could have been brought by the Trustee against the Picower releasees. See Special App’x 31. Insofar as such claims are truly duplicative or derivative, they undoubtedly have an effect on the bankruptcy estate and, thus, are subject to the Bankruptcy Court’s jurisdiction. See In re Quigley, 676 F.3d at 57. We have defined so-called “derivative claims” in the context of bankruptcy as ones that “arise[] from harm done to the estate” and that “seek[ ] relief against third parties that pushed the debtor into bankruptcy.” Picard v. JPMorgan Chase & Co. (In re Bernard L. Madoff Inv. Sec. LLC) (“JPMorgan Chase”), 721 F.3d 54, 70 (2d Cir.2013). In assessing whether a claim is derivative, we inquire into the factual origins of the injury and, more importantly, into the nature of the legal claims asserted. See Johns-Manville Corp. v. Chubb Indem. Ins. Co. (In re Johns-Manville Corp.) (“Manville III”), 517 F.3d 52, 67 (2d Cir.2008). While a derivative injury is based upon “a secondary effect from harm done to [the debtor],” an injury is said to be “particularized” when it can be “directly traced to [the third party’s] conduct.” St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 704 (2d Cir.1989). Most of this Circuit’s jurisprudence on a bankruptcy court’s authority to enjoin derivative claims in liquidation proceedings stems from what has been aptly characterized as “the long saga of litigation arising from the bankruptcy" }, { "docid": "5583396", "title": "", "text": "phrase “misrepresentation” as defined by the factors set out by the Tenth Circuit in Young and discussed above. We do not mean to imply, however, that the Trustee could not show actual fraud to IIAP under § 523(a)(2)(A), or that he did not show willful and malicious injury from Mr. Vickery’s intent to injure IIAP under § 523(a)(6). Whether the Trustee properly proved his claim under § 523(a)(6) will be decided in the related appeal pending in the United States District Court for the District of Colorado in Case No. 12-cv-01891. .Complaint at ¶¶ 53-56, in App’x at 16. . Plaintiff's Memorandum in Support of Motion for Summary Judgment at 27, in App’x at 132. . Order Denying Plaintiff's Motion for Summary Judgment at 12, in App’x at 1592. . Findings of Fact, Conclusions of Law, and Ruling at 6-7, in App’x at 3247-48. The Trustee did not appeal this portion of the bankruptcy court’s ruling. . Id. at 7, in App’x at 3248. . Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.1982). . Green Country Food Mkt., Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1280 (10th Cir. 2004). . Id. at 1281 (concluding that the trial court did not abuse its discretion in refusing to treat a complaint that asserted claims under subsections (B) and (C) of § 203 of the Oklahoma Antitrust Reform Act as having asserted a claim under subsection (A) of the same statute, where that subsection had only been referenced three times in motions). . See Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir.2006) (stating that if there is a pretrial order, then it \"is the controlling document for trial\"). . Complaint at ¶¶ 52-56, in App'x at 16. . Transcript of March 19, 2012 at 84-91, in App’x at 1954-61. . See id. at 92, ll. 19-20, in App'x at 1962 (opening statement from Mr. Vickery's counsel summarizing the claims made by the Trustee against Mr. Vickery). . Id. at 118, ll. 10-11, in App’x at 2404." }, { "docid": "16859905", "title": "", "text": "after CCM introduced its own marks. If that were so, Cl would have possessed no rights that CCM could infringe, thus dooming its counterclaim. See Hana Fin., Inc. v. Hana Bank, — U.S. -, 135 S.Ct. 907, 909, 190 L.Ed.2d 800 (2015) (“Rights in a trademark are determined by the date of the mark’s first use in commerce,”). But the record contains colorable evidence that Cl began using “collective” continually- in commerce well before CCM employed its allegedly infringing marks in 2011. This evidence precludes summary judgment on the, issue. ‘ A mark is used in commerce when it is employed “to identify ... goods or services” sold to consumers “in a given market.” ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 147 (2d Cir.), cert. denied, 552 U.S. 827, 128 S.Ct. 288, 169 L.Ed.2d 38 (2007). Cl introduced - the domain name www. collective.com for its -principal-website in late 2008. That website appears to have been commercial in nature: The record indicates that it described Cl’s products and sought to explain what “set[] [the company] apart” from its competitors. App’x 1095-96. And soon after the site went live, Cl purchased several standalone advertisements that directed consumers to “collective.com” for more information about the company. See App’x 1125-27. Taken together, this evidence tends to establish that Cl put its domain name, which features the stand-alone mark “collective,” to continuous commercial use beginning sometime before 2011. Although the district court correctly noted that “the use of a phrase in a domain name does not necessarily mean that it is being used as a mark in commerce,” August Order, 2014 WL 11343849, at *13, 2014 U.S. Dist. LEXIS 117244, at *35-36 (citing TCPIP Holding Co., 244 F.3d at 104), the court erred in finding that, other than the use of “ ‘collective’ in its domain name and email addresses,” Cl had “failed to” “bring forth additional evidence that it used the mark in its marketing materials,” id. Cl also used a capitalized version of the mark, “Collective,” to refer to itself on its website, see App’x 1095, and in its advertising, see" }, { "docid": "12077307", "title": "", "text": "United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.2005), which we characterized as holding “that a district court is not bound by the findings of the jury at sentencing. Rather, sentencing facts are based on the evidence and testimony presented at sentencing under a preponderance of the evidence standard.” Brown, 212 F. App’x at 741. See also United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir.2008) (holding that there is no Booker error when a district court uses a preponderance of the evidence standard to determine the appropriate Sentencing Guidelines range as long as the Sentencing Guidelines are considered advisory); United States v. Townley, 472 F.3d 1267, 1276 (10th Cir.2007) (“Appellant incorrectly ar gues that Booker error occurs any time a district court enhances a sentence based on facts not found by a jury. Rather, after Booker, a district court is not precluded from relying on judge-found facts in determining the applicable Guidelines range so long as the Guidelines are considered as advisory rather than mandatory.”); United States v. Rodriguez-Felix, 450 F.3d 1117, 1130 (10th Cir.2006) (“After Booker, a constitutional violation lies only where a district court uses judge-found facts to enhance a defendant’s sentence mandatorily under the [Sentencing Guidelines], and not where a court merely applies such facts in a discretionary manner.”). We also concluded that if we considered Brown’s new argument raised in his reply brief, that the district court’s finding that Brown possessed a firearm in connection with his drug dealing activity was not supported by the preponderance of the evidence standard, the “high standard of clear error review would not allow us to overturn the judge’s ruling that the .45 caliber clip and bullets carried by Brown were in connection with drug dealing and supported the firearm enhancement.” Brown, 212 F. App’x at 741 n. 3. In the motion that is the subject of this appeal, Brown seeks a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) based on retroactive application of Amendment 706. App. Vol. 1 Doc. 106. Brown’s argument in the memorandum submitted to the district court in support of" }, { "docid": "16428124", "title": "", "text": "injury” have declined to decide the issue. See, e.g., United States v. Sawyer, 115 F.3d 857, 860 n. 2 (11th Cir.1997) (finding no \"bodily injury” in the instant case, but declining to decide the question more generally); United States v. Lanzi, 933 F.2d 824, 827 (10th Cir.1991) (same). . In United States v. Rivera, 83 F.3d 542, 548 (1st Cir.1996), the court found that a victim's statement to a probation officer that a carjacking and rape \"ha[d] had a devastating effect on her life, family, and consensual relationship” was a \"generalit[y]” that, when combined with a lack of evidence that she sought professional help, \"f[e]ll short of proof measuring up to 'protracted ... impairment of ... mental faculty' sufficient to justify an additional ten-year sentence” under the carjacking statute’s definition of “serious bodily injury.” On remand, the trial court resen-tenced the defendant, applying the enhancement after finding \"protracted impairment of mental faculties]” based upon new evidence of the nature, severity, and longevity of the victim's post-traumatic stress. The First Circuit affirmed. See United States v. Vazquez-Rivera, 135 F.3d 172, 177-78 (1st Cir.1998). . We also note that the district court downwardly departed to a significant degree in order to arrive at the sentence it imposed on Spinelli. If, on remand, the distinguished and experienced court finds insufficient evidence to support the enhancement for \"permanent or life-threatening bodily injury, ” it may choose to deduct the additional time from the defendant's sentence, or it may, within the bounds of its discretion under the Guidelines, instead readjust other elements of the defendant’s sentence to arrive at what it believes to be a just sentence." }, { "docid": "22418323", "title": "", "text": "Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir.2005). We hold, however, that the district court had subject matter jurisdiction over the charge for which De La Garza was convicted. “[District courts ... have original jurisdiction ... [over] all offenses against the laws of the United States.” 18 U.S.C. § 3231; see also U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases ... arising under ... the Laws of the United States.”). Here, the Government charged De La Garza with an offense against the laws of the United States, so absent a separate limit on subject matter jurisdiction, the district court had authority to adjudicate whether De La Garza conspired to violate the MDLEA. We have interpreted the “on board a vessel subject to the jurisdiction of the United States” portion of the MDLEA as a congressionally imposed limit on courts’ subject matter jurisdiction, akin to the amount-in-controversy requirement contained in 28 U.S.C. § 1332. See United States v. Tinoco, 304 F.3d 1088, 1107 (11th Cir.2002) (stating that MDLEA “provides that the question of whether a vessel is subject to the jurisdiction of the United States should be treated purely as an issue of subject matter jurisdiction for the court to decide”). Therefore, for a district court to have adjudicatory authority over a charge that a defendant “knowingly or intentionally ... possessed] with intent to manufacture or distribute a controlled substance” in violation of 46 U.S.C. App’x § 1903(a), the Government must preliminarily show that the defendant was “on board a vessel subject to the jurisdiction of the United States.” Id. Furthermore, for a district court to have adjudicatory authority over a charge that a defendant conspired to violate the substantive crime defined in subsection (a), the Government must preliminarily show that the conspiracy’s vessel was, when apprehended, “subject to the jurisdiction of the United States.” Id.; see 46 U.S.C. App’x § 1903(j) (2005) (“Any person who attempts or conspires to commit any offense defined in this chapter shall be subject to the same penalties as those prescribed for the offense, the" } ]

[ { "docid": "22908029", "title": "", "text": "Georgia district court as the forum; that court, as would any federal court in this Tort Claims action, applied Georgia law to the liability issue. Certainly the United States had a pressing need to litigate fully in the prior action, which resulted in a $350,000 judgment against the United States. That case thoroughly explored the relevant negligence questions at issue in the present case. Finally, it was entirely foreseeable that the facts of the prior judgment would be important in the present case, since charges of negligence in both cases involve identical circumstances. We therefore rule that, since federal principles of collateral estoppel applied, the United States was precluded from relitigating issues essential to the prior judgment. Because of our ruling on the preclusive effect of that prior judgment, we need not reach the appellant’s further contention that the district court was in clear error in finding no negligence; the identical issues of negligence were, of course, litigated in the prior action. However, because other issues in the case — including that of proximate cause of damage to appellant— were not disposed of in the prior judgment or necessary to it, we return the case to the district court for resolution of those outstanding questions. In ascertaining the precise preclusive effect of the prior judgment on particular issues, we refer the district court to the requirements set out, inter alia, in International Association of Machinists and Aerospace Workers v. Nix, 512 F.2d 125, 132 (5th Cir. 1975), and cases cited therein: “(1) The issue to be concluded must be identical to that involved in the prior action; (2) in the prior action the issue must have been ‘actually litigated’; and (3) the determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.” REVERSED AND REMANDED. . In Blonder-Tongue the Supreme Court touched on the question of collateral estoppel applied offensively. But the Court specifically noted that Blonder-Tongue itself did not involve such “offensive use” questions. 402 U.S. at 329-30, 91 S.Ct. 1434. . In the context of applying state collateral estoppel" } ]

[ { "docid": "17903693", "title": "", "text": "at the time of such filing.” Seven Elves appealed Suit No. 3 to the Ninth Circuit Bankruptcy Appellate Panel, which affirmed, rejecting the argument that the court below was clearly erroneous in finding that Eskenazi “had acted without malice and with probable cause in joining in the filing of an involuntary bankruptcy petition against Seven Elves, Incorporated.” In re Eskenazi, 6 B.R. 366, [1978-81 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,663, at 78,152 (Bkrtcy. 9th Cir.1980). The issue before us now is whether the district court, after remand from the Fifth Circuit, correctly held that the finding in Suit No. 3 that Suit No. 1 was not brought for purposes of willful and malicious injury operates as collateral estoppel on the issue of probable cause in Suit No. 2. It is a sign of our times that an original debt of some $800 owed by Seven Elves to Liebman and Riback generated a diversity suit, two bankruptcy proceedings, an appeal to the Ninth Circuit and two trips to the Fifth Circuit, none of which has rewarded anyone by so much as a dime. II. A federal court applies federal common law in deciding the collateral es-toppel effect of a prior federal judgment. Reimer v. Smith, 663 F.2d 1316, 1325 n. 9 (5th Cir.1981) (dictum). Under federal law, three elements must be shown for collateral estoppel to apply: (1) The issue at stake must be identical to that involved in the prior action; (2) the issue in the prior action must have been actually litigated; and (3) the determination of the issue in the prior action must have been necessary and essential to the prior judgment. Johnson v. United States, 576 F.2d 606, 615 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981). The appellants dispute that the first and third elements have been met. There is no question but that the third element has been met. The determination urged as collateral estoppel by Lieb-man and Riback is the California bankruptcy court’s finding in Suit No. 3 that the default judgment was dischargeable. Seven Elves argued in" }, { "docid": "4542142", "title": "", "text": "prior action. Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006). The parties do not dispute the second prong-that Appellant had a full and fair opportunity to litigate the issues in the New York State Court Proceedings. As to the first prong, “under New York law, collateral estoppel effect will only be given to matters actually litigated and determined in a prior action, because if an issue has not been litigated, there is no identity of issues.” Id. at 282 (citations and internal quotation marks omitted). “For a question to have been actually litigated so as to satisfy the identity requirement, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding.” Id. (citations and internal quotation marks omitted). “The prior decision need not have been explicit on the point, since if by necessary implication it is contained in that which has been explicitly decided, it will be the basis for collateral estoppel.” BBS Norwalk One, Inc. v. Raccolta, Inc., 117 F.3d 674, 677 (2d. Cir.1997) (citation and internal quotation marks omitted). Finally, under New York law, the “pendency of an appeal does not prevent the use of the challenged judgment as the basis of collateral estoppel.” Anonymous v. Dobbs Ferry Union Free School Dist., 19 A.D.3d 522, 522, 797 N.Y.S.2d 120 (2nd Dept.2005) (citation omitted). If the appeal results in the overturning of the challenged judgment, Federal Rule of Civil Procedure 60(b)(5), as applied by Bankruptcy Rule 9024, permits a court to relieve a party from a final judgment where “it is based on an earlier judgment that has been reversed or vacated.” Fed. R.Civ.P. 60(b)(5); Bankruptcy Rule 9024. Applying these principles of collateral es-toppel and New York law, I turn to the Bankruptcy Court’s granting of summary judgment of non-dischargeability under Sections 523(a)(2), (4), and (6). B. Section 523(a)(2) Appellant first contends that the Bankruptcy Court erred in granting summary judgment that the debt owed to Appellees is non-dischargeable under 11 U.S.C. § 523(a)(2), which excepts from discharge any debt “for money, property, ser vices, or an" }, { "docid": "11080423", "title": "", "text": "estoppel prevents the relitigation of an issue only if the following four requirements are satisfied: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. Matter of McMillan (Appeal of Freedom Finance Co., Inc.), 579 F.2d 289 (3rd Cir. 1978). Collateral estoppel treats as final only those issues that were actually and necessarily decided in a prior suit. Should a state court decide factual issues using standards identical to or more stringent than those used in bankruptcy dischargeability actions, then collateral es-toppel, if held to be applicable, would preclude relitigation of those issues in a bankruptcy court. The Brown Court left unresolved the extent to which collateral estoppel may be applied in dischargeability cases. Brown, supra, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. The Ninth Circuit has taken the position that where bankruptcy courts have exclusive jurisdiction to determine dis-chargeability “there is no room for the application of the technical doctrine of collateral estoppel.” In re Houtman, 568 F.2d 651, 653 (9th Cir. 1978). However, the Ninth Circuit later held that if both parties rest their cases on a judgment from a prior proceeding, the bankruptcy court may consider such facts as willfulness and malice to be established by collateral estoppel if those facts were necessarily determined to exist in the earlier proceeding. Matter of Kasler, 611 F.2d 308, 310 (9th Cir. 1979). The Third and Fifth Circuits would apply the doctrine. Matter of Ross, 602 F.2d 604, 607-08 (3rd Cir. 1979); Matter of Merrill, 594 F.2d 1064, 1066-67 (5th Cir. 1979). The First Circuit has not yet decided whether collateral es-toppel is appropriate when a bankruptcy court has exclusive jurisdiction in a dis-chargeability case. Commonwealth of Massachusetts v. Hale, 618 F.2d 143, 146 (1st Cir. 1980). Debts for willful and malicious injury by the debtor to the person or property of another are specifically" }, { "docid": "1264193", "title": "", "text": "does not require the bankruptcy court to redetermine all the underlying facts ... this court holds that where all the requirements of collateral estoppel are met, collateral estoppel should preclude relit-igation of factual issues.” See, e.g., Spilman v. Harley, 656 F.2d 224, 227-28 (6th Cir.1981). To the effect that a prior judgment may allow issue preclusion in dischargeability litigation provided that traditional tests for preclusion are met, see Wheeler v. Laudani, 783 F.2d 610 (6th Cir.1986); Lombard v. Axtens, 739 F.2d 499 (10th Cir.1984). 2.03 The Fifth Circuit has also held that issue preclusion may apply to discharge-ability litigation in bankruptcy court. See, Matter of Shuler, 722 F.2d 1253 (5th Cir.1984); Matter of Allman, 735 F.2d 863 (5th Cir.1984); Matter of Poston, 735 F.2d 866 (5th Cir.1984). Shuler, which cites Spil-man, indicates that the predominate view is that collateral estoppel may apply to subsidiary facts actually litigated and necessarily decided and found no error where the bankruptcy court applied such principles in determining the dischargeability of a debt represented by a prior state court judgment. III. Which Test to Apply For Collateral Estoppel: Federal or State? 3.01. An early Fifth Circuit case, Merrill v. Heller & Co. of Alabama, 594 F.2d 1064, 1066 n. 1 (5th Cir.1979) stated that “although the cause of action is state created, federal rules of collateral estoppel apply in bankruptcy proceedings.” 3.02. The Fifth Circuit decisions in Shu-ler, Allman, and Poston apply the federal test, with little analysis, to determine whether issue preclusion is applicable. The test for collateral estoppel was restated in Shuler at 1256 n. 2.: “The applicability of collateral estoppel thus stated is in accord with the general test for collateral estoppel in this Circuit. This court has stated that the three traditional requirements for the application for the doctrine of collateral estoppel are: (i) the issue to be precluded must be identical to that involved in the prior action, (ii) in the prior action the issue must have been actually litigated, and (iii) the determination made of the issue in the prior action must have been necessary to the resulting judgment.”" }, { "docid": "4699815", "title": "", "text": "Corp., 841 F.2d 6, 9 (1st Cir.1988); Seven Elves v. Eskenazi, 704 F.2d 241, 243, n. 2 (5th Cir. 1983); Restatement of Judgments 2d. § 87 (1982). The Sixth Circuit Court of Appeals has decided that “[a]pplying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown ...” as long as the requirements of collateral estoppel are met. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). Under Spilman, the bankruptcy judge must determine whether the issue sought to be reconsidered was “actually litigated and was necessary to the decision” in the prior action. Id. at 228. Absent a determination that the specific issue was litigated and necessary, the bankruptcy judge must permit the creditor to present evidence in support of his non-dischargeability claim. Id. at 229. Indeed, if necessary, the bankruptcy court must obtain the entire trial court transcript and review the record to determine what issues the judgment encompassed. Wheeler v. Laudani, 783 F.2d 610, 616 (6th Cir.1986). Judge Merritt, citing Spilman, has set forth four requirements which must be met before a trial court may apply collateral estoppel to prevent further judicial review of an issue. DPOA v: Young, 824 F.2d 512 (6th Cir.1987). The requirements are: (1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding. DPOA, 824 F.2d at 515. [citations omitted] [emphasis added]. In considering a consent judgment, the bankruptcy court may preclude an inquiry into the merits only when it finds the particular consent judgment is an adjudication “on the merits.” United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182 (1953). The party seeking to invoke collateral es-toppel “must prove from the record of the prior case or" }, { "docid": "2067873", "title": "", "text": "held in Brown, where the facts necessary for a dischargeability determination were not necessary to the determination in the prior judgment, the parties should not be bound ... However, where the factual issues necessary for dischargeability determination were also necessary to the state court determination, the parties would not have to anticipate the bankruptcy proceedings and the state courts would not be determining issues irrelevant to the state proceedings. Collateral estoppel is applied to encourage the parties to present their best arguments on the issues in question in the first instance and thereby save judicial time. There is no reason to suppose that parties will not vigorously present their case on issues necessary to the state court proceeding or that the bankruptcy court will be any more fair or accurate than the state court in the determination of the facts. Thus, there is no reason to allow relitigation of facts previously litigated which were necessary to the outcome of that prior litigation. This Court holds that where all the requirements of collateral estoppel are met, collateral estoppel should preclude reliti-gation of factual issues. 656 F.2d 224, 227-28. Under federal law, the elements which must be shown for collateral estoppel to apply are: (1) The issue must be identical to that involved in the prior action; (2) The issue in the prior action must have actually been litigated; and (3) The determination of the issue in the prior action must have been necessary and essential to the prior judgment. Seven Elves, Inc. v. Eskenazi, 704 F.2d 241 (5th Cir.1983); Spihnan v. Harley, supra. Plaintiffs contend that these three elements have been met in this case and they point to the jury’s award of punitive damages to establish that there has been a finding that the Defendant’s conduct was “willful and malicious” as those terms are used in § 523(a)(6). To determine if that is so, we must compare the standards under which the jury was instructed that it could award punitive damages and the standards by which the dischargeability of a debt is measured under § 523(a)(6). See In re Pitner," }, { "docid": "6938406", "title": "", "text": "apply the doctrine of collateral estoppel, as requested by Berry, because an examination of the jury trial record failed to reveal whether the jury had applied a “willful and malicious” standard or a “reckless disregard” standard in awarding punitive damages. The jury had been instructed that either standard could apply. After then conducting an independent analysis of the testimony elicited in the earlier proceeding, the Court found the debtor’s conduct to have been willful, but not malicious in accordance with the standards enunciated in Seven Elves, Inc. v. Eskenazi, 704 F.2d 241, 245 (5th Cir.1983). The debt evidenced by the judgment was discharged. In In re Dunn and In re McLemore, supra, this Court cited relevant authority concerning the applicability of collateral es-toppel in a bankruptcy dischargeability action. In addressing the matter presently before the Court, three of those authorities must be reiterated. First, the Supreme Court case, Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 2213 n. 10, 60 L.Ed.2d 767 (1979), addressed the issue of the applicability of collateral estoppel in a bankruptcy dis-chargeability action as follows: If, in the course of adjudicating a state law question, a state court should determine factual issues using standards identical to those of [§ 523 of the present Bankruptcy Code] then collateral estop-pel, in the absence of countervailing statutory policy, would bar relitigation of those issues in bankruptcy court. Id. Second, in In re Shuler, 722 F.2d 1253, 1255 (5th Cir.1984), the Fifth Circuit stated that collateral estoppel may be invoked in a dischargeability action, but held that the bankruptcy court is not bound by the earlier determination and, in fact, retains exclusive jurisdiction to determine the ultimate question of the dischargeability of a debt. In addition, the Shuler decision, citing White v. World Finance of Meridian, Inc., 653 F.2d 147, 151 (5th Cir.1981), set forth the following test for applying the doctrine of collateral estoppel within the Fifth Circuit: (i) the issue to be precluded must be identical to that involved in the prior action, (ii) the issue must have been actually litigated in the prior" }, { "docid": "11852373", "title": "", "text": "Appellant’s conduct in initiating and prosecuting her sexual harassment claim constituted tortious conduct, resulting in willful and malicious injury. Accordingly, because the debt in this case arose from willful and malicious injury caused by the Appellant’s tortious conduct, it is excepted from discharge under § 523(a)(6). This determination is consistent with the fundamental policy of bankruptcy law to only grant discharges to the honest but unfortunate debtor. See In re Jercich, 238 F.3d at 1206. 2. Bankruptcy Court’s Reliance on the State Court’s Factual Findings As to whether the bankruptcy court properly relied on the state court’s factual findings in determining that the attorney’s fee award is nondischargeable debt under § 523(a)(6), the question before the Court is whether the bankruptcy court properly applied the doctrine of collateral estoppel. Principals of collateral estop-pel apply in discharge exception proceedings under § 523(a). Cal-Micro, Inc. v. Cantrell (In re Cantrell), 329 F.3d 1119, 1123 (9th Cir.2003); see also Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (a party may invoke collateral estoppel to preclude relit-igation of the elements necessary to meet a § 523(a) exception). “Collateral estoppel is applicable if the facts established by the previous judgment”—in this case, a state court judgment-“meet the requirements of nondischargeability.” Wolstein v. Docteroff (In re Docteroff), 133 F.3d 210, 215 (3d Cir.1997). “Under the Full Faith and Credit Act, 28 U.S.C. § 1738, the preclu-sive effect of a state court judgment in a subsequent bankruptcy proceeding is determined by the preclusion law of the state in which the judgment was issued.” Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.2001). In California, “[cjollateral es-toppel precludes relitigation of issues argued and decided in prior proceedings.” Lucido v. Superior Court, 51 Cal.3d 335, 341, 272 Cal.Rptr. 767, 795 P.2d 1223 (1990). Courts will only apply collateral estoppel if the following threshold requirements are met: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) this issue must have been actually litigated in the former proceeding; (3)" }, { "docid": "1223378", "title": "", "text": "applicable to nondischargeability proceedings in bankruptcy cases. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[Collateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”) Though bankruptcy courts have exclusive jurisdiction to determine dischargeability issues, this “does not require the bankruptcy court to redetermine all the underlying facts” of the case if they were previously determined in an earlier lawsuit. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). “[W]here all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues.” Id. at 228. The application of issue preclusion in a nondischargeability action de pends on whether the prior state court judgment would be afforded preclusive effect under state law. The Spring Works, Inc. v. Sarff (In re Sarff), 242 B.R. 620, 624 (6th Cir. BAP 2000). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom es-toppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). First, the party against whom issue preclusion is being asserted here, Defendant Naomi E. Powers, was defendant in the prior litigation, thereby satisfying the privity requirement. Second, the State Court’s Judgment followed a bench trial at which both parties were present and represented by counsel (Judgment at 1), which satisfies the second requirement that parties had full and fair opportunity to litigate. Third, the State Court issued specific findings regarding Defendant’s actions and her underlying motivations, indicating that those facts were either admitted or tried before the Court; neither" }, { "docid": "11080422", "title": "", "text": "nondischargeable. The Supreme Court recently held that, in the context of determining dischargeability under § 17(a)(2), (4) and (8) of the Bankruptcy Act, the doctrine of res judicata does not apply and a bankruptcy court is not required to limit its review to a judgment and record from prior state court proceedings. The Supreme Court reasoned that, where Congress had granted bankruptcy courts exclusive jurisdiction to decide particular issues, res judicata should not prevent those courts from exercising that jurisdiction. Brown v. Felsen, 442 U.S. 127, 138-39, 99 S.Ct. 2205, 2212-13, 60 L.Ed. 767 (1979). Congress has also granted bankruptcy courts exclusive jurisdiction to decide dischargeability questions under § 523(a)(2), (4) and (6) of the Bankruptcy Code. 11 U.S.C. § 523(c). Therefore, the rule set forth in Brown is applicable in the case at hand. In re Eskenazi, 6 B.R. 366 (Bkrtcy., 9th Cir. 1980); Matter of Trewyn, 12 B.R. 543 (Bkrtcy.W.D.Wis.1981). The issue in the present case does not involve the doctrine of res judicata but concerns the related principle of collateral estoppel. Collateral estoppel prevents the relitigation of an issue only if the following four requirements are satisfied: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. Matter of McMillan (Appeal of Freedom Finance Co., Inc.), 579 F.2d 289 (3rd Cir. 1978). Collateral estoppel treats as final only those issues that were actually and necessarily decided in a prior suit. Should a state court decide factual issues using standards identical to or more stringent than those used in bankruptcy dischargeability actions, then collateral es-toppel, if held to be applicable, would preclude relitigation of those issues in a bankruptcy court. The Brown Court left unresolved the extent to which collateral estoppel may be applied in dischargeability cases. Brown, supra, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. The Ninth Circuit has taken the position" }, { "docid": "3110405", "title": "", "text": "(1980). The Supreme Court has held that issue preclusion principles are applicable to dischargeability proceedings in bankruptcy cases. Grogan v. Garner, 498 U.S. 279, 284 n.11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (“[C]ollateral estoppel principles do indeed apply in discharge exception proceedings pursuant to § 523(a).”). Though bankruptcy courts have exclusive jurisdiction to determine dischargeability issues, this “does not require the bankruptcy court to redetermine all the underlying facts” of the case if they were previously determined in an earlier lawsuit. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir. 1981). “[Wjhere all the requirements of collateral estoppel are met, collateral estoppel should preclude relitigation of factual issues.” Id. at 228. The application of issue preclusion in a dischargeability action depends on whether the prior state court judgment would be afforded preclusive effect under state law. Ed Schory & Sons, Inc. v. Francis (In re Francis), 226 B.R. 385, 388 (6th Cir. B.A.P. 1998). In order to successfully assert collateral estoppel under Ohio law, a party must plead and prove the following elements: (1) the party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) there was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) the issue must have been identical to the issue involved in the prior suit. Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Plaintiffs contend that they are entitled to summary judgment because the facts necessary to a determination of nondis-chargeability under 11 U.S.C. § 523(a)(2)(A), (6), and/or (19) were established in the State Court Proceeding between Plaintiffs and Defendants, so issue preclusion bars Defendants from relitigat-ing the relevant issues here. As an initial matter, the Court concludes that two of the four elements articulated in Sarff have been satisfied as to each of the three causes of action. First, the" }, { "docid": "4699814", "title": "", "text": "Code. It would prevent the bankruptcy judge from making an accurate determination whether the debtor actually committed the allegedly nondis-chargeable acts and further would prevent the federal court judge from making a determination whether the debtor’s conduct rose to the level required by the Bankruptcy Code in order to declare the debt nondis-chargeable. The Supreme Court has not foreclosed the application of collateral estoppel principles in nondischargeability proceedings. Brown, 442 U.S. at 139, f.n. 10, 99 S.Ct. at 2213, n. 10. The Court noted that “collateral estoppel [issue preclusion] treats as final only those questions actually and necessarily decided in a prior suit” [citations omitted]. Id. Debtor mistakenly assumes that Michigan law on res judicata and collateral es-toppel applies in this case. Because the prior litigation was brought in federal court, federal and not state rules of res judicata and collateral estoppel apply. Heiser v. Woodruff, 327 U.S. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed. 970 (1946); Cerner v. Marathon Oil Co., 583 F.2d 830, 831 (6th Cir.1978); In re El San Juan Hotel Corp., 841 F.2d 6, 9 (1st Cir.1988); Seven Elves v. Eskenazi, 704 F.2d 241, 243, n. 2 (5th Cir. 1983); Restatement of Judgments 2d. § 87 (1982). The Sixth Circuit Court of Appeals has decided that “[a]pplying collateral estoppel is logically consistent with the Supreme Court’s decision in Brown ...” as long as the requirements of collateral estoppel are met. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981). Under Spilman, the bankruptcy judge must determine whether the issue sought to be reconsidered was “actually litigated and was necessary to the decision” in the prior action. Id. at 228. Absent a determination that the specific issue was litigated and necessary, the bankruptcy judge must permit the creditor to present evidence in support of his non-dischargeability claim. Id. at 229. Indeed, if necessary, the bankruptcy court must obtain the entire trial court transcript and review the record to determine what issues the judgment encompassed. Wheeler v. Laudani, 783 F.2d 610, 616 (6th Cir.1986). Judge Merritt, citing Spilman, has set forth four requirements which must be met" }, { "docid": "8311938", "title": "", "text": "before us. McMillan states: There are four requirements which must be met before collateral estoppel effect can be given to a prior action: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) that issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the prior judgment. Id. at 291-292. In the present action all four of the requirements have, in fact, been met. The issue of fraud, as charged in the prior action and as defined in 11 U.S.C. § 523(a), is virtually the same in both actions. The issue was actually litigated. The final judgment was valid and the determination of the issue of fraud was essential to the prior judgment. Nevertheless, an examination of the case law is necessary to determine the applicability of collateral estoppel in the particular context of bankruptcy-dischargeability questions. The law in this Circuit as to the applicability of collateral estoppel to dischargeability questions is discussed comprehensively in two recent cases, Rolls Tools Ltd. v. Herman, 6 B.R. 352 (1980), and Bishop v. Greenblatt, 8 B.R. 994 (Bkrtcy.1981). In Matter of Herman, the Court carefully analyzed the applicability of collateral es-toppel to cases of exclusive federal jurisdiction such as bankruptcy. In Herman, the Court granted summary judgment after close scrutiny of the transcripts of the prior proceeding. Judge Lewittes found that collateral estoppel could be applied without conflicting with prior decisions which limited the applicability of this doctrine to dis-chargeability questions. In his analysis, Judge Lewittes examined three cases which bear directly on the issue presented here. The first case, In re Houtman, 568 F.2d 651 (9th Cir. 1978) examined the issue of exclusive jurisdiction of the bankruptcy courts over determinations of dischargeability. That case, decided under the Bankruptcy Act, held that there was no room for the technical doctrine of collateral estoppel in determining dischargeability. However, it held open the door for judicial review of the prior proceedings to determine dis-chargeability. In other words, a judgment" }, { "docid": "8017008", "title": "", "text": "since it is not a debt owed to children of the Debtor. Application of the Doctrine of Collateral Estoppel Collateral estoppel bars relitigation of issues decided in a prior judicial proceeding. Bush v. Balfour Beatty Bahamas, Ltd., 62 F.3d 1319 (11th Cir.1995). Collateral estoppel principles apply to dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The Eleventh Circuit has held that a federal court must apply state collateral estoppel law if the prior judgment was entered in a state court. In re St. Laurent, 991 F.2d 672, 675-76 (11th Cir.1993). Here, since the Paternity Judgment was entered by a Florida state court, this Court must apply the collateral estoppel standards applicable under Florida law. Under Florida law, the following elements must be established before collateral estoppel may be invoked: (1) the issue at stake must be identical to the one decided in the prior litigation; (2) the issue must have been actually litigated in the prior proceeding; (3) the prior determination of the issue must have been a critical and necessary part of the judgment in that earlier decision; and (4) the standard of proof in the prior action must have been at least as stringent as the standard of proof in the later case. St. Laurent, 991 F.2d at 676 (citations omitted). While collateral estoppel may bar a bankruptcy court from relitigating factual issues previously decided in state court, the ultimate issue of dischargeability is a legal'question to be addressed by the bankruptcy court in the exercise of its jurisdiction. See In re Halpern, 810 F.2d 1061, 1064 (11th Cir.1987). The first element is satisfied since the issue is identical in both cases, namely, whether the Plaintiff is the legal father of the twins. Of course, the fact that the issue is identical does not automatically mean, as the DOR argues, that the State Court Case determines the outcome here. This Court must still determine whether the state court’s finding on the issue is entitled to collateral estoppel effect. The third and fourth elements are not in dispute. The" }, { "docid": "14254194", "title": "", "text": "denied). When Ag Acceptance foreclosed on the real property on September 2, 2003, a two-year statute of limitations commenced. Tex. Prop.Code § 51.003(a). The Deficiency Suit was filed on September 1, 2005, and could toll the statute of limitations to permit the equipment foreclosure at issue in this case. See In re Herman, 315 B.R. 381, 393-94 (Bankr.E.D.Tex.2004) (collecting Texas cases). Appellants contend, however, that the statute of limitations barred the Deficiency Suit because Rabo Agrifinance did not actually own the debt at the time it filed the Deficiency Suit, and in any event, it failed to exercise diligence in effecting service of process. We need not discuss the ownership of the debt in detail because collateral estoppel bars this attack on the validity of the Deficiency Suit judgment. “When a federal court sitting in diversity is considering the collateral estoppel effect of a prior federal judgment, this Circuit applies federal common law.” Reimer v. Smith, 663 F.2d 1316, 1325 n. 9 (5th Cir.1981). To establish collateral estoppel under federal law, one must show: (1) that the issue at stake be identical to the one involved in the prior litigation; (2) that the issue has been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation has been a critical and necessary part of the judgment in that earlier action. Wehling v. CBS, 721 F.2d 506, 508 (5th Cir.1983). The parties to the suits need not be completely identical, so long as the party against whom estoppel applies had the full and fair opportunity to litigate the issue in the previous lawsuit. Id. The defendants in the Deficiency Suit challenged Rabo Agrifinance’s ownership of the Secured Farming Loans debt: “They allege that there are inconsistent ownership statements in other evidence before the Court and that the affidavit evidence [establishing ownership] is insufficient for summary judgment purposes.” 2008 WL 341425, at *3. The district court rejected these arguments, finding that while Ag Acceptance owned the debt for some time, “[i]n October 2003, the debt was transferred back to [Rabo Agrifinance’s predecessor-in-interest] from Ag" }, { "docid": "17510559", "title": "", "text": "1328, 84 L.Ed.2d 274 (1985). Instead, in a nondischargeability proceeding in a bankruptcy court must, pursuant to the full faith and credit principles of 28 U.S.C. § 1738 , give the same issue preclusion effect to a state court judgment as it would be given under that state’s law. Id. Accordingly, in this case, the Court will apply Ohio’s law on collateral estoppel since all the events giving rise to the Plaintiffs Complaint transpired in Ohio. Under Ohio law, the doctrine of collateral estoppel is comprised of four elements: (1) A final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (2) The issue must have been actually and directly litigated in the prior suit and must have been necessary to the final judgment; (3) The issue in the present suit must have been identical to the issue involved in the prior suit; and (4) The party against whom estoppel is sought was a party or in privity with a party to the prior action. In re Wilcox, 229 B.R. at 416-17. With respect to these requirements, the Court, given the Debtor’s full participation in his divorce proceeding, finds that elements one and four as set forth above have been met. Similarly, considering that specific findings of fact were contained in the state court order regarding the grounds giving rise to the Debtor’s marital debt to the Plaintiff, the Court also finds that the second element of the collateral estoppel test has been met. Accordingly, the Court’s remaining analysis will focus solely on the applicability of the third requirement of the collateral estoppel doctrine. The third prong of Ohio’s collateral estoppel test requires that the issue involved in the present litigation must have been identical to the issue involved in the prior suit. In a dischargeability action this means ascertaining whether the factual issues in the state court proceeding were determined “using standards identical to those in the dischargeability proceedings .... ” Spilman v. Harley, 656 F.2d 224, 226 (1981); see also Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654," }, { "docid": "3783146", "title": "", "text": "complaint to determine dischargeability of debt pursuant to 11 U.S.C. §§ 523(a)(2)(A), (B) and (a)(4). (Adv.Doc. 1.) 24. On September 2, 1999 the Duval County Florida Circuit Court entered Order Denying Motion to Set Aside Final Judgment as to Defendant. (Pl.’s Ex. 23.) CONCLUSIONS OF LAW Plaintiff contends Defendant is collaterally estopped from disputing the factual elements of fraud conclusively established by entry of the state court default judgment. Alternatively, Plaintiff contends that even if issue preclusion does not apply, fraud was proven at trial in this Court. Defendant contends that because there is no way of knowing upon which grounds the judgment against Defendant was based, collateral estoppel cannot apply. Defendant also argues that the evidence produced at trial does not support a finding of nondischargeability. The preliminary issue before the Court is whether the Final Judgment After Default entered in the state court conclusively establishes the elements of fraud as to Defendant and thus, prevents the discharge of the judgment debt. I. Collateral Estoppel The Supreme Court has made clear that the principles of collateral estoppel may apply to foreclose the relitigation of facts in an exception to discharge proceeding. See Grogan v. Garner, 498 U.S. 279, 285 n. 1, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). In considering whether to give preclusive effect to state court judgments, federal courts must apply that state’s law of collateral estoppel. See Vazquez v. Metropolitan Dade County, 968 F.2d 1101, 1106 (11th Cir.1992). Under Florida law, three elements must be present in order for issue preclusion to be proper: (1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior litigation; and (3) the determination must have been a critical and necessary part of the judgment in that earlier action. See St. Laurent, II v. Ambrose (In re St. Laurent, II), 991 F.2d 672, 676 (11th Cir.1993) (interpreting Florida law of collateral estoppel); Vazquez, 968 F.2d at 1106 (noting standard for applying collateral estoppel under Florida law is identical to federal standard); Mike Smith Pontiac," }, { "docid": "17903694", "title": "", "text": "anyone by so much as a dime. II. A federal court applies federal common law in deciding the collateral es-toppel effect of a prior federal judgment. Reimer v. Smith, 663 F.2d 1316, 1325 n. 9 (5th Cir.1981) (dictum). Under federal law, three elements must be shown for collateral estoppel to apply: (1) The issue at stake must be identical to that involved in the prior action; (2) the issue in the prior action must have been actually litigated; and (3) the determination of the issue in the prior action must have been necessary and essential to the prior judgment. Johnson v. United States, 576 F.2d 606, 615 (5th Cir.1978), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981). The appellants dispute that the first and third elements have been met. There is no question but that the third element has been met. The determination urged as collateral estoppel by Lieb-man and Riback is the California bankruptcy court’s finding in Suit No. 3 that the default judgment was dischargeable. Seven Elves argued in that proceeding that the debt was not dischargeable because it fell within the exception set out in 11 U.S.C. § 523(a)(6). This issue was not merely necessary to the court’s decision to discharge the debt; it was in fact the only issue in dispute and the whole basis for Suit No. 3 and the Ninth Circuit appeal. The heart of our current inquiry is whether the first element of identity of the issues is met. Resolving this inquiry requires us to answer two questions. First, is a finding that under the Bankruptcy Code a suit was not brought for purposes of willful and malicious injury equivalent to a finding of probable cause under Texas tort law? Second, does the fact that Eskenazi had probable cause necessarily mean that Lieb-man and Riback had probable cause as well? Under the uncontroverted facts of this case, the answer to both questions is yes. The California bankruptcy court’s finding that Eskenazi was entitled to a discharge, was substantially equivalent to a finding that he initiated the proceeding against Seven" }, { "docid": "5953900", "title": "", "text": "of Limitations. The Court overrules the motion for summary judgment on this point. Res Judicata Collateral Estoppel The debtor alternatively alleges that the plaintiff is barred by the doctrines of res judicata and collateral estoppel from relit-igating identical issues determined at the court martial proceeding. The debtors raise the question of the preclusive effect of a court martial ruling in a bankruptcy dischargeability proceeding. Res judicata or claim preclusion provides that once there has been a final judgment on the merits of a cause of action, the parties are forever barred from relitigating any issues in a subsequent suit that were or could have been litigated in the first suit. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). Collateral es-toppel or issue preclusion forecloses the relitigation of only those issues that were expressly decided in and necessary to the determination of a prior suit. Id. The Supreme Court has rejected giving a state court judgment res judicata effect to bar a bankruptcy court’s examination of a debt’s dischargeability under the former § 17, now § 523 of the Bankruptcy Code. Brown v. Felson, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). However, the Court in Brown expressly declined to address the issue of collateral estoppel and indicated that issue preclusion would be proper in certain circumstances. A leading case addressing the use of collateral estop-pel in bankruptcy dischargeability proceedings is Spilman v. Harley, 656 F.2d 224 (6th Cir.1981). In Spilman, the Court established three criteria which must be proven in order for collateral estoppel to apply: (1) the precise issue in the later proceeding must have been raised in the prior proceeding; (2) the issue must have actually been litigated; and (3) the determination must be necessary to the outcome. Spilman, 656 F.2d at 228. Thus, if the bankruptcy court concludes that the above three requirements are met, the court may find facts established in previous litigation conclusive. In re Bosselait, 63 B.R. 452, 456 (Bankr.E.D.Va.1986). The Fifth Circuit has agreed finding that: “... collateral estoppel-arising from an earlier nonbankruptcy suit’s" }, { "docid": "2067874", "title": "", "text": "collateral estoppel should preclude reliti-gation of factual issues. 656 F.2d 224, 227-28. Under federal law, the elements which must be shown for collateral estoppel to apply are: (1) The issue must be identical to that involved in the prior action; (2) The issue in the prior action must have actually been litigated; and (3) The determination of the issue in the prior action must have been necessary and essential to the prior judgment. Seven Elves, Inc. v. Eskenazi, 704 F.2d 241 (5th Cir.1983); Spihnan v. Harley, supra. Plaintiffs contend that these three elements have been met in this case and they point to the jury’s award of punitive damages to establish that there has been a finding that the Defendant’s conduct was “willful and malicious” as those terms are used in § 523(a)(6). To determine if that is so, we must compare the standards under which the jury was instructed that it could award punitive damages and the standards by which the dischargeability of a debt is measured under § 523(a)(6). See In re Pitner, supra. Section 523(a)(6) provides “A discharge under section 727, 1141 or 1328(b) of this title does not discharge an individual debt or from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity.” Collier has defined the terms “willful” and “malicious” as follows: 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 or 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. 3 Collier on Bankruptcy, ¶ 523.16(1) at p. 523-118-19 (15 ed. 1982). See also In re Irvin, 31 B.R. 251 (Bkrtcy.Colo.1983). The award of punitive damages in civil actions in Colorado is governed by § 13-21-102, C.R.S. The jury in Asplin and Leidy’s suit against" } ]

[ { "docid": "10832340", "title": "", "text": "the use, possession, enjoyment or disposition of the McKays’ mineral interests. On the McKays’ third claim, that the Board’s reduction in their mining permit amounted to a regulatory taking, the trial court concluded that there was no taking because the Board merely granted the McKays’ voluntary request for a reduction. Concluding that all three of the McKays’ claims failed, the trial court granted the Government’s cross-motion for summary judgment of no liability. DISCUSSION In reviewing a trial court’s grant of summary judgment, we must make an independent determination as to whether the standards for summary judgment have been met. See Conroy v. Reebok Int’l Ltd., 14 F.3d 1570, 1575, 29 U.S.P.Q.2d 1373, 1377; Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1560, 19 U.S.P.Q.2d 1111, 1114 (Fed.Cir.1991); C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670, 673, 15 U.S.P.Q.2d 1540, 1542-43 (Fed.Cir.1990). In considering whether summary judgment should have been granted, we view the evidence in a light most favorable to the non-movant and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1116, 227 U.S.P.Q. 577, 581 (Fed.Cir.1985) (en banc). A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). When both parties move for summary judgment, each party’s motion must be evaluated on its own merits and all reasonable inferences must be resolved against the party whose motion is under consideration. See Mingus Constrs., Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). i. Contamination by Spraying As an incident to its sovereignty, the Government has the authority to take private property for a public purpose. However, that authority is not without limitation. As it has for over two centuries, the Fifth Amendment of the United States Constitution concludes with the simple statement: “nor shall private property be taken for public use, without just compensation.” U.S. Const," } ]

[ { "docid": "22164028", "title": "", "text": "cross-moved for summary judgment. The court granted the government’s motion and held that Customs correctly classified the ZMS 319 under heading 9011 because that heading described the ZMS 319 more specifically than heading 9018, noting the fact that heading 9011 is an eo nomine provision and heading 9018 is a use provi sion. See id. at 1099-1100. The court rejected Zeiss’s argument that under Nippon Kogaku (USA), Inc. v. United States, 69 C.C.P.A. 89, 673 F.2d 380 (1982), all microscopes used in medicine must be classified under heading 9018. See id. at 1100. The court found that Zeiss had not proved that the term “compound optical microscope” had a commercial meaning distinct from its common meaning, see id. at 1100-01, and noted that the Explanatory Notes to the HTSUS supported Customs’ classification. See id. at 1101. Zeiss timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION A. The Standard of Review We review the Court of International Trade’s grant of summary judgment in a trade classification case for correctness as a matter of law, deciding de novo whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. See U.S.Ct. Int’l Trade R. 56(d); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed.Cir.1998). Determining the meaning of a tariff term is a question of law. See Baxter Heathcare Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed.Cir.1999). We give Chevron deference to Customs’ interpretations of these terms in its regulations, see United States v. Haggar Apparel Co., 526 U.S. 380, 119 S.Ct. 1392, 1399, 143 L.Ed.2d 480 (1999), but not to those interpretations in Customs rulings, see Mead Corp. v. United States, 185 F.3d 1304, 1307 (Fed.Cir.1999). Determining whether a particular imported item falls within the scope of the various classifications as properly construed is a question of fact. See Baxter, 182 F.3d at 1337. In this case, the structure and use of the ZMS 319 are not in dispute, and Customs has not promulgated any regulations interpreting these" }, { "docid": "23710085", "title": "", "text": "other artificial respiration apparatuses. See id. at 1149-50. Baxter timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION A. Standard of Review We review the Court of International Trade’s grant of summary judgment in a trade classification case for correctness as a matter of law, deciding de novo whether genuine issues of material fact exist. See Bauerhin Techs. Ltd. Partnership v. United States, 110 F.3d 774, 776 (Fed.Cir.1997). Determining the meaning of a tariff term is a question of law. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.Cir.1995). However, if we determine that an HTSUS provision is ambiguous and that Customs has promulgated a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design, we give [that] judgment ‘controlling weight.’ ” United States v. Haggar Apparel Co., — U.S. -, -, 119 S.Ct. 1392, 1399, 143 L.Ed.2d 480 (1999) (alteration in original) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)) (overruling prior Federal Circuit cases that failed to give Chevron deference to Customs regulations). “Determining whether a particular imported item falls within the scope of the various classifications as properly construed is a question of fact.” Bauerhin, 110 F.3d at 776. Furthermore, Customs’ classification determination is presumed to be correct. See 28 U.S.C. § 2639(a)(1) (1994). Therefore, as the party challenging the classification, Baxter bore the burden of proof. See Totes, Inc., 69 F.3d at 498. In this case, the structure and use of Oxyphan® is not in dispute, and Customs has not promulgated any regulations interpreting these headings and subheadings. Our analysis concerning whether Oxyphan® has been properly classified only requires a determination of the proper meaning and scope of the relevant provisions and a determination of the ultimate classification. B. The Meaning and Scope of the Proposed Headings The HTSUS consists of “(A) the General Notes; (B) the General Rules of Interpretation [GRI]; (C) the Additional U.S. Rules of Interpretation [US GRI]; (D)" }, { "docid": "23710084", "title": "", "text": "cross-moved for summary judgment. See id. at 1135. The court held that Customs correctly classified Oxyphan® as a synthetic monofilament because it was both “synthetic” and a “monofilament” as both those terms are defined by the Notes in the HTSUS, the Explanatory Notes, several general and technical dictionaries, and Baxter’s expert witnesses. See id. at 1139-45. The court in fact relied heavily on Baxter’s expert witnesses. The court further reasoned that Customs properly classified Oxyphan® as an independent article, not as a “part” or “unfinished part,” because its use as a “part” of an oxygenator could not be discerned at the time of import and because each spool of Oxy-phan® underwent substantial processing— cutting, intertwining with another monofi-lament, wrapping around a bellow, and further cutting — before it obtained . the character of an oxygenator “part.” See id. at 1145-49. The court rejected Baxter’s argument that Customs should have classified Oxyphan® as a “part” of an artificial respiration apparatus for the further reason that Baxter’s' oxygenator did not perform the mechanical breathing function common to other artificial respiration apparatuses. See id. at 1149-50. Baxter timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION A. Standard of Review We review the Court of International Trade’s grant of summary judgment in a trade classification case for correctness as a matter of law, deciding de novo whether genuine issues of material fact exist. See Bauerhin Techs. Ltd. Partnership v. United States, 110 F.3d 774, 776 (Fed.Cir.1997). Determining the meaning of a tariff term is a question of law. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed.Cir.1995). However, if we determine that an HTSUS provision is ambiguous and that Customs has promulgated a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design, we give [that] judgment ‘controlling weight.’ ” United States v. Haggar Apparel Co., — U.S. -, -, 119 S.Ct. 1392, 1399, 143 L.Ed.2d 480 (1999) (alteration in original) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467" }, { "docid": "16642095", "title": "", "text": "1. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION A. Principles of Law Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a district court’s grant of a motion for summary judgment de novo. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). “In reviewing a denial of a motion for summary judgment, we give considerable deference to the trial court, and will not disturb the trial court’s denial of summary judgment unless we find that the court has indeed abused its discretion.” Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 USPQ2d 1910, 1912 (Fed.Cir.2000). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). “If there are no material facts in dispute precluding summary judgment, our task is to determine whether the judgment granted is correct as a matter of law.” Elekta, 214 F.3d at 1306, 54 USPQ2d at 1912. A determination of infringement requires a two-step analysis. Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Id. (quoting Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993)). “Literal infringement requires that every limitation of the patent claim be found in the accused device.”" }, { "docid": "18932953", "title": "", "text": "As in this case, where there are no disputed material facts regarding the imported merchandise, our analysis of whether the merchandise has been properly classified reduces to a determination of the proper meaning and scope of the terms used in the tariff provision. See SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed.Cir.1997); Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.Cir.1994). The law of this court has been that the interpretation of tariff provisions are an issue of law which we review de novo. See Sharp Microelectronics, 122 F.3d at 1449; Sports Graphics, 24 F.3d at 1391. In United States v. Haggar Apparel Co., — U.S.-, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999), the Supreme Court held that Customs’ interpretation of the HTSUS, as evinced in issued regulations, is entitled to deference under the rubric 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). Although this case is distinct from Haggar in that no Customs regulations are at issue, we recognize that the Supreme Court’s pronouncement may nonetheless raise questions regarding the proper standard of review of Customs’ interpretation of the HTSUS. Because neither party has raised this issue, and because — as described below — we accept Customs’ interpretative position even under a more searching de novo review, we leave the standard of review question for another day. The issue before us is whether the properly-interpreted scope of HTSUS Heading 4202 or HTSUS Heading 4820 encompasses Avenues’ imported folios. Avenues argues first that classification in Heading 4202 is improper, and second that classification in Heading 4820 is proper regardless of whether classification in Heading 4202 is possible. There is no dispute that the folios are not specifically listed as an exemplar in either Heading 4202 or 4820. However, each Heading contains a general phrase following the listed exemplars, making clear that the Headings are to cover “similar containers” in the case of Heading 4202, and “similar articles” in the case of Heading 4820. This court has held that when a list of items is" }, { "docid": "16642096", "title": "", "text": "S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 USPQ2d 1910, 1912 (Fed.Cir.2000). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). “If there are no material facts in dispute precluding summary judgment, our task is to determine whether the judgment granted is correct as a matter of law.” Elekta, 214 F.3d at 1306, 54 USPQ2d at 1912. A determination of infringement requires a two-step analysis. Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Id. (quoting Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed.Cir.1993)). “Literal infringement requires that every limitation of the patent claim be found in the accused device.” Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d 978, 981, 41 USPQ2d 1440, 1445 (Fed.Cir.1997). Claim construction is an issue of law, Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71, 34 USPQ2d 1321, 1322 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996), that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1172 (Fed.Cir.1998) (en banc). “Whether certain claim language invokes 35 U.S.C. § 112, ¶ 6 is an exercise of claim construction and is therefore a question of law, reviewable de novo by this court.” Personalized Media v. Int’l Trade Comm’n, 161 F.3d 696, 702, 48 USPQ2d 1880, 1886 (Fed.Cir.1998). Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). B. Claim Construction Wenger argues that the district court erred in interpreting the “air circulation means” limitation as requiring structure capable of recirculating air. Wenger contends that," }, { "docid": "13446231", "title": "", "text": "is similar to the purpose underlying nonpartisan voter registration and get-out-the-vote campaigns.” 44 Fed. Reg. at 39,348. Plaintiffs disagree, pointing out that even the much-heralded Conference Report’s example of get-out-the vote activities is “assisting eligible voters to register and to get to the polls.” H.R.Rep. No. 1057, at 63 (1976). Judicial review of the .validity of an agency’s construction of a statute entails a bifurcated analysis. See Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, if a court determines that “Congress has directly spoken to the precise question at issue,” then “that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” 467 U.S. at 842-43, 104 S.Ct. 2778. If however, the agency’s statutory interpretation “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design, we give [that] judgment ‘controlling weight.’ ” Id. at 844, 104 S.Ct. 2778. “[I]f it is a reasonable interpretation and implementation of an ambiguous statutory provision, it must be given judicial deference.” United States v. Haggar Apparel Co., 526 U.S. 380, 383, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999) (involving a customs regulation). Because “Congress need not, and likely cannot, anticipate all circumstances in which a general policy must be given specific effect”, Congress may authorize agencies “to issue rules so that its statutes may be applied to unforeseen situations and changing circumstances in a manner consistent with Congress’ general intent.” Id. at 392-93, 119 S.Ct. 1392. The Supreme Court has held that the FEC is “precisely the type of agency to which deference should presumptively be afforded.” FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981) (upholding the FEC’s view that agency agreements between the National Republican Senatorial Committee and the state committees were logically consistent with legislative intent, although Congress failed to explicitly provide for such arrangements). Hence, in determining whether the FEC’s action is “contrary to" }, { "docid": "2349451", "title": "", "text": "headings were inappropriate because the merchandise at issue fell within the scope of heading 8525, which was more specific than either of the headings proposed by JVC. Id. at 1138-39. JVC timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION We review the Court of International Trade’s grant of summary judgment for correctness as a matter of law, deciding de novo whether genuine issues of material fact existed and whether the moving party was entitled to judgment as a matter of law. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1378 (Fed.Cir.1999). In reviewing a denial of a motion for summary judgment, “we give considerable deference to the trial court, and will not disturb the trial court’s denial of summary judgment unless we find that the court has indeed abused its discretion.” Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 U.S.P.Q.2d 1910, 1912 (Fed.Cir.2000). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). Determining the meaning of a tariff term in the HTSUS is an issue of statutory interpretation and thus a question of law. Nissho Iwai Am. Corp. v. United States, 143 F.3d 1470, 1472 (Fed.Cir.1998). If an HTSUS provision is ambiguous and Customs issues a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design,” Customs’ interpretation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1994). United States v. Haggar Apparel Co., 526 U.S. 380, 392, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). However, in the absence of such a regulation, this court has held that Chevron deference does not extend to Customs’ interpretation in an ordinary classification ruling. Mead Corp. v. United States, 185 F.3d 1304, 1306 (Fed.Cir.1999), cert. granted, — U.S. -, 120 S.Ct. 2193, 147" }, { "docid": "6753162", "title": "", "text": "“any argument on nonuni-formity based on the figures in the Tinker affidavit is irrelevant, and does not point to the existence of genuine issues of material fact.” Id. at 31. The court determined that the Lentsch, Rigney, and Fernholz evidence established that Envirochem’s products literally infringed claim 1 of the 818 patent. In view of its literal infringement determination, the district court enjoined Enviroehem from making, using, or selling the seven products. Ecolab, Inc. v. Amerikem Labs., Inc., 98 F.Supp.2d 569 (D.N.J. 2000) (order). Enviroehem timely appealed the district court’s grant of summary judgment and entry of injunction. We have jurisdiction under 28 U.S.C. § 1295(a)(1) (1994). DISCUSSION I. Standard of Review We review a district court’s grant of summary judgment de novo. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). However, in reviewing a denial of a motion for summary judgment, we give deference to the trial court, and “will not disturb the trial court’s denial of summary judgment unless we find that the court has indeed abused its discretion.” SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333, 51 USPQ2d 1811, 1815 (Fed.Cir.1999). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). “In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the party opposing the motion, with doubts resolved in favor of the opponent.” Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307, 46 USPQ2d 1752, 1755 (Fed.Cir.1998). If there are no material facts in dispute precluding summary judgment, “our task is to determine whether the judgment granted is correct as a matter of law.” Prochorenko v. United States, 243 F.3d 1359, 1362" }, { "docid": "2349452", "title": "", "text": "all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). Determining the meaning of a tariff term in the HTSUS is an issue of statutory interpretation and thus a question of law. Nissho Iwai Am. Corp. v. United States, 143 F.3d 1470, 1472 (Fed.Cir.1998). If an HTSUS provision is ambiguous and Customs issues a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design,” Customs’ interpretation is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1994). United States v. Haggar Apparel Co., 526 U.S. 380, 392, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). However, in the absence of such a regulation, this court has held that Chevron deference does not extend to Customs’ interpretation in an ordinary classification ruling. Mead Corp. v. United States, 185 F.3d 1304, 1306 (Fed.Cir.1999), cert. granted, — U.S. -, 120 S.Ct. 2193, 147 L.Ed.2d 231 (2000). Determining whether a particular imported item falls within the scope of the various classifications, as properly construed, is a question of fact. Carl Zeiss, 195 F.3d at 1378. In this ease, because the structure and use of the imported camcorders are not in dispute, and Customs has not promulgated any regulations interpreting the tariff terms at issue, our analysis of whether the imported merchandise has been properly classified turns on the determination of the proper meaning and scope of the relevant tariff classifications. Id. JVC argues that the Court of International Trade erred in concluding that Customs properly classified the subject merchandise under subheading 8525.30.00. JVC argues that camcorders are not classifiable under heading 8525 because they do not fall within the common meaning of the term “television cameras.” JVC asserts that a camcorder is by definition a combined television camera and videocassette recorder. JVC further asserts that because camcorders have two co-equal and independent functions, a camcorder is “more than” .a television camera, and therefore is not classifiable as one. JVC" }, { "docid": "23650873", "title": "", "text": "S.Ct. 1392, 143 L.Ed.2d 480 (1999) has raised questions concerning the standard of review applicable to determinations of the meaning and scope of tariff terms. See Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1243 (Fed.Cir.1999). The meaning of a tariff term, a matter of statutory interpretation, is a question of law. See Bauerhin Tech. v. United States, 110 F.3d 774, 776 (Fed.Cir.1997). Accordingly, this court has previously accorded Customs’ classification rulings no deference. See Rollerblade, Inc. v. United States, 112 F.3d 481, 483-84 (Fed.Cir.1997). In Haggar, however, the Supreme Court held that if an HTSUS provision is ambiguous and Customs promulgates a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design,” courts should give that judgment “controlling weight” as articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Haggar, 119 S.Ct. at 1399. Thus this court must decide whether that deci sion applies in this case where Customs has not issued a regulation, but has merely issued a classification ruling implicitly interpreting an HTSUS provision. For the reasons articulated below, this court determines that Haggar, and thus Chevron deference, does not extend to ordinary classification rulings. The United States Code has specifically given Customs the power to promulgate regulations. See 19 U.S.C. § 1502(a) (1994). Where, as in Haggar, Customs issues a regulation under the procedural rigors dictated by the Administrative Procedure Act, see 5 U.S.C. § 553 (1994), that regulation has the enforceability of law. See Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979); Bernard Schwartz, Administrative Law 182-83 (3d ed.1991). A regulation, however, must first undergo a notice and comment period during which the interested public can “participate in the rule making through submission of written data, views, or arguments.” 5 U.S.C. § 553(c). Moreover, even after promulgation, a regulation is subject to petitions in which interested persons may seek to amend or repeal the new policy. See 5 U.S.C. § 553(e)." }, { "docid": "22164029", "title": "", "text": "correctness as a matter of law, deciding de novo whether genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. See U.S.Ct. Int’l Trade R. 56(d); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed.Cir.1998). Determining the meaning of a tariff term is a question of law. See Baxter Heathcare Corp. of P.R. v. United States, 182 F.3d 1333, 1337 (Fed.Cir.1999). We give Chevron deference to Customs’ interpretations of these terms in its regulations, see United States v. Haggar Apparel Co., 526 U.S. 380, 119 S.Ct. 1392, 1399, 143 L.Ed.2d 480 (1999), but not to those interpretations in Customs rulings, see Mead Corp. v. United States, 185 F.3d 1304, 1307 (Fed.Cir.1999). Determining whether a particular imported item falls within the scope of the various classifications as properly construed is a question of fact. See Baxter, 182 F.3d at 1337. In this case, the structure and use of the ZMS 319 are not in dispute, and Customs has not promulgated any regulations interpreting these headings and subheadings. Our analysis concerning whether the ZMS 319 has been properly classified only requires a determination of the proper meaning and scope of the relevant provisions and a determination of the preferred heading for classification purposes, both questions of law. B. The Meaning and Scope of the Proposed Headings Zeiss challenges Customs’ classification of the subject merchandise under heading 9011, which includes “compound optical microscopes.” Zeiss argues that this term commonly refers to compound optical microscopes used for laboratory, industry, and research use, not for medical or surgical use. Zeiss concedes that the ZMS 319’s OPMI ® microscope falls within the dictionary definition of a compound optical microscope in that it has multiple stages of magnification (an objective and two eyepieces), but maintains that it is not a compound optical microscope for tariff purposes because it only has surgical uses and has a different “commercial identity.” The government responds that the common meaning of the term is the same as its dictionary meaning, which is simply any light microscope with multiple levels of" }, { "docid": "5710713", "title": "", "text": "69 C.C.P.A. 47, 668 F.2d 501 (1981), that the permapressing operation was incidental to the assembly process and thus did not disqualify the pants from favorable treatment under HTSUS 9802.00.80. See Haggar Apparel Co. v. United States, 938 F.Supp. 868, 875 (CIT 1996). The court rejected Customs’ contention that 19 C.F.R. § 10.16(c) controlled, finding that the regulation “conflicts with the plain language” of the HTSUS, and noting that the Federal Circuit had, in a series of prior cases, see e.g., General Motors Corp. v. United States, 976 F.2d 716, 718 (Fed.Cir.1992), either ignored or discounted the regulation. The court also rejected Customs’ argument that the regulation was entitled to deference pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Haggar Apparel, 938 F.Supp. at 875. Customs appealed to this court, which declined to consider the regulation under the Chevron framework, and affirmed the Court of International Trade. See Haggar Apparel Co. v. United States, 127 F.3d 1460, 1462 (Fed.Cir.1997). Customs then petitioned for a writ of certiorari to the Supreme Court, which was granted. See United States v. Haggar Apparel Co., 524 U.S. 981, 119 S.Ct. 30, 141 L.Ed.2d 790 (1998). The Supreme Court vacated this court’s judgment, holding that HTSUS 9802.00.80 is ambiguous, for purposes of Chevron analysis, thereby requiring courts to defer to Customs regulations manifesting a reasonable interpretation of the statute. See United States v. Haggar Apparel Co., 526 U.S. 380, 391-92, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). The Court, however, declined to consider whether 19 C.F.R. § 10.16(c) was a reasonable interpretation of the “operations incidental to the assembly process” provision of HTSUS 9802.00.80, reasoning that such arguments were better presented to this court in the first instance. See 526 U.S. at 395, 119 S.Ct. 1392. Accordingly, the case was remanded for further proceedings. See id. Upon remand, we ordered additional briefing and oral argument, see Haggar Apparel Co. v. United States, 1999 WL 798028 (Fed.Cir. Aug.20, 1999), and now hold that 19 C.F.R. § 10.16(c) is a reasonable interpretation" }, { "docid": "2279748", "title": "", "text": "took defendants to produce the source code and supporting documentation in electronic format.” Id. However, “aware of no authority that would permit [him] to award plaintiff, a pro se litigant, attorney’s fees,” the magistrate limited Pickholtz’s monetary recovery to out-of-pocket expenses only. Id. at 2-3. The district judge adopted the magistrate’s resolution of the discovery issue. Pickholtz v. Rainbow Techs., Inc., No. C 98-2661, slip op. at 1 (N.D. Cal. June 9, 2000) (order). Pickholtz appeals from the judgment of the district court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION We review a district court’s denial of summary judgment for an abuse of discretion. Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 USPQ2d 1910, 1912 (Fed.Cir.2000). We review a district court’s grant of summary judgment de novo, reapplying the same standard used by the district court. Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315, 47 USPQ2d 1272, 1275 (Fed.Cir.1998). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. McKay v. United States, 199 F.3d 1376, 1380 (Fed.Cir.1999). A determination of infringement requires a two-step analysis. “First, the court determines the scope and meaning of the-patent claims asserted.... [Second,] the properly construed claims are compared to the allegedly infringing device.” Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454, 46 USPQ2d 1169, 1172 (Fed. Cir.1998) (en banc) (citations omitted). Step one, claim construction, is an issue of law, Markman v. Westview Instruments," }, { "docid": "2349450", "title": "", "text": "not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: 8479.89 Other: 8479.89.80 Other HTSUS, heading 8479. Merchandise classified under subheadings 8543.80.90 and 8479.89.90 are dutiable at the respective rates of 3.9% and 3.7% ad valorem. JVC, 62 F.Supp.2d at 1134. Both parties moved for summary judgment, arguing that there were no genuine issues of material fact in dispute. Id. at 1136. The Court of International Trade denied JVC’s motion for summary judgment and granted the government’s corresponding cross-motion, holding that Customs had correctly classified JVC’s camcorders under subheading 8525.30.00 as “television cameras.” Id. at 1139. The court concluded that JVC’s camcorders were prima facie classifiable under heading 8525 as “television cameras.” Id. at 1188. The court also concluded that this court’s holding in Sears Roebuck & Co. v. United States, 22 F.3d 1082 (Fed.Cir.1994), was not dispositive in this case, as Sears was decided under the Tariff Schedules of the United States (“TSUS”), not the HTSUS. JVC, 62 F.Supp.2d at 1138. The court further concluded that JVC’s proposed alternative headings were inappropriate because the merchandise at issue fell within the scope of heading 8525, which was more specific than either of the headings proposed by JVC. Id. at 1138-39. JVC timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (1994). DISCUSSION We review the Court of International Trade’s grant of summary judgment for correctness as a matter of law, deciding de novo whether genuine issues of material fact existed and whether the moving party was entitled to judgment as a matter of law. Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1378 (Fed.Cir.1999). In reviewing a denial of a motion for summary judgment, “we give considerable deference to the trial court, and will not disturb the trial court’s denial of summary judgment unless we find that the court has indeed abused its discretion.” Elekta Instrument S.A. v. O.U.R. Scientific Int’l, Inc., 214 F.3d 1302, 1306, 54 U.S.P.Q.2d 1910, 1912 (Fed.Cir.2000). When both parties move for summary judgment, the court must evaluate each motion on its own merits, resolving" }, { "docid": "18932952", "title": "", "text": "Avenues in Leather, 11 F.Supp.2d at 723. The Court of International Trade concluded that, under the rule of ejusdem generis — calling for the classification of imported articles with exemplars with which they share the same essential characteristics or purposes that unite the listed exemplars — Customs’ decision to enter the goods under Heading 4202 was correct. See id. at 724. The Court of International Trade held that the primary purpose of the imported folios is consistent with the primary purpose of the listed exemplars in Heading 4202, and that there is a strong physical similarity between the folios and the 4202 exemplars. See id. at 724-25. The Court of International Trade granted Customs’ motion for summary judgment, dismissing the action. This appeal followed, vesting us with jurisdiction under 28 U.S.C. § 1295(a)(5) (1994). II We review the trial court’s grant of summary judgment for correctness as a matter of law. See Sharp Microelectronics Tech., Inc. v. United States, 122 F.3d 1446, 1449 (Fed.Cir.1997); Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994). As in this case, where there are no disputed material facts regarding the imported merchandise, our analysis of whether the merchandise has been properly classified reduces to a determination of the proper meaning and scope of the terms used in the tariff provision. See SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed.Cir.1997); Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.Cir.1994). The law of this court has been that the interpretation of tariff provisions are an issue of law which we review de novo. See Sharp Microelectronics, 122 F.3d at 1449; Sports Graphics, 24 F.3d at 1391. In United States v. Haggar Apparel Co., — U.S.-, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999), the Supreme Court held that Customs’ interpretation of the HTSUS, as evinced in issued regulations, is entitled to deference under the rubric 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). Although this case is distinct from Haggar in that no Customs regulations are at issue, we" }, { "docid": "8047561", "title": "", "text": "which the article is used. Id. The trial court found that the protective gear had a direct relationship to the activity of roller skating, but not to the HTSUS heading, namely roller skates. Hence, the trial court affirmed Custom’s refusal to classify Rollerblade’s protective gear under subheading 70.2090 as an “accessory” to roller skates. Id. at 1254-55. Moreover, on summary judgment, the Court of International Trade concluded that Customs properly classified the protective gear under the residual “other” [sports equipment] subheading 99.6080. Id. at 1257. Rollerblade timely appealed to this court, which has exclusive appellate jurisdiction. 28 U.S.C. § 1295(a)(5) (1994). Rollerblade argues that the protective gear constitutes “parts” to the roller skates because it contributes to the safe and effective operation of the in-line roller skates. II. This court reviews summary judgment “for correctness as a matter of law, deciding de novo the proper interpretation of the governing statute and regulations as well as whether genuine issues of material fact exist.” Texaco Marine Servs., Inc. v. United States, 44 F.3d 1539, 1543 (Fed.Cir.1994) (quoting St. Paul Fire & Marine Ins. Co. v. United States, 6 F.3d 763, 767 (Fed.Cir.1993)). In the context of this case, however, this court defers to the contested Customs classification. Although not entitled to Chevron deference (see Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)), a Customs classification receives some deference in accordance with Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). Furthermore, under 28 U.S.C. § 2639(a)(1), “a classification of merchandise by Customs is presumed to be correct.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994). Thus, “the burden of proof is upon the party challenging the classification.” Mita Copystar Am., 21 F.3d at 1082 (citing Jarvis Clark Co. v. United States, 733 F.2d 873, 876 (Fed.Cir.1984)). Classification of goods under the HTSUS entails both ascertaining the proper meaning of specific terms in the tariff provision and determining" }, { "docid": "15083299", "title": "", "text": "ultimate issue as to whether particular imported merchandise has been classified under an appropriate tariff provision is a question of law which we review de novo. Resolution of that issue entails a two step process: (1) ascertaining the proper meaning of specific terms in the tariff provision; and (2) determining whether the merchandise at issue comes within the description of such terms as properly construed. The first step is a question of law which we review de novo and the second is a question of fact which we review for clear error.”) (citations omitted). In United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), the Court confirmed that Customs classification rulings are not accorded Chevron deference, see 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), because “[t]he authorization for classification rulings, and Customs’ practice in making them, present a case far removed not only from notice-and-comment process, but from any other circumstances reasonably suggesting that Congress ever thought of classification rulings as deserving the [Chevron] deference claimed for them here.” Mead, 533 U.S. at 231, 121 S.Ct. 2164. Applying Mead, Customs rulings that are not the product of notice-and-comment rulemaking as exemplified in United States v. Haggar Apparel Co. 526 U.S. 380, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999), are nonetheless entitled to the deference described in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). In Skidmore the Court held that “the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. at 140, 65 S.Ct. 161. Although PBS" }, { "docid": "23650872", "title": "", "text": "role of packaging.” Using that broad meaning for “bound,” the trial court found that Mead’s day planners, whose contents fit in a loose-leaf ringed binder, fall within that definition. On appeal, Mead contests the trial court’s definitions of “diaries” and “bound.” Mead contends that “diaries” means: “A book for recording a person’s observations, thoughts and/or events.” Mead further contends that an item is “bound” only when “permanently secured along one edge between covers in a manner traditionally performed by a bookbinder.” II. This court reviews the Court of International Trade’s grant of summary judgment without deference. See Sharp Microelecs. Tech., Inc. v. United States, 122 F.3d 1446, 1449 (Fed.Cir.1997). Where, as here, the parties do not dispute material facts regarding the imported goods, the analysis of whether the trial court properly classified the goods collapses into a determination of the proper meaning and scope of the HTSUS terms. See SGI, Inc. v. United States, 122 F.3d 1468, 1471 (Fed.Cir.1997). The Supreme Court’s recent pronouncement in United States v. Haggar Apparel Co., - U.S. -, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999) has raised questions concerning the standard of review applicable to determinations of the meaning and scope of tariff terms. See Avenues in Leather, Inc. v. United States, 178 F.3d 1241, 1243 (Fed.Cir.1999). The meaning of a tariff term, a matter of statutory interpretation, is a question of law. See Bauerhin Tech. v. United States, 110 F.3d 774, 776 (Fed.Cir.1997). Accordingly, this court has previously accorded Customs’ classification rulings no deference. See Rollerblade, Inc. v. United States, 112 F.3d 481, 483-84 (Fed.Cir.1997). In Haggar, however, the Supreme Court held that if an HTSUS provision is ambiguous and Customs promulgates a regulation that “fills a gap or defines a term in a way that is reasonable in light of the legislature’s revealed design,” courts should give that judgment “controlling weight” as articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Haggar, 119 S.Ct. at 1399. Thus this court must decide whether that deci sion applies in this case" }, { "docid": "22361568", "title": "", "text": "made by Commerce, this court applies anew the standard of review applied by the Court of International Trade in its review of the administrative record.” Micron Tech., Inc. v. United States, 243 F.3d 1301, 1307-08 (Fed.Cir.2001) (quoting F.LLI De Ceceo Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1031 (Fed.Cir.2000)). In doing so, we uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i). We first turn our attention to the standard of review to be afforded to the antidumping determination at issue. The question is whether we should review the questions of statutory interpretation involved here under the traditional two-step Chevron analysis (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)), or under the less deferential regime set forth in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See United States v. Mead Corp., 533 U.S. 218, -, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001). We conclude that Chevron deference is afforded to Commerce’s statutory interpretations as to the appropriate methodology, and therefore we do not reach the question whether Commerce’s statutory interpretations could withstand review under the less deferential Skidmore regime. Where Commerce has adopted a regulation by notice-and-comment rule-making pursuant to the Administrative Procedure Act (5 U.S.C. § 553), the Chevron standard, of course, applies. See Mead, 533 U.S. at -, 121 S.Ct. at 2172; United States v. Haggar Apparel Co., 526 U.S. 380, 390, 119 S.Ct. 1392, 143 L.Ed.2d 480 (1999). In many past cases, however, we have afforded Chevron deference to Commerce’s antidumping determinations even when (as here) there is no applicable regulation. In Thai Pineapple Public Co., Ltd. v. United States, 187 F.3d 1362 (Fed.Cir.1999), cert. denied, 529 U.S. 1097, 120 S.Ct. 1830, 146 L.Ed.2d 775 (2000), for example, we held that Commerce’s reliance on certain cost allocation methodologies provided by Thai fruit producers to calculate those producers’ dumping margins was entitled to Chevron deference. In reaching" } ]

[ { "docid": "22969143", "title": "", "text": "Cir.1969). The cocaine was properly admitted. Nothing in the record suggests that its admission was arbitrary, capricious, or unreasonable to warrant a finding of abuse of discretion. II. Defendant Cardenas appeals from his convictions under 18 U.S.C.A. § 922(g)(5) and 18 U.S.C.A. § 924(c). As to 18 U.S.C. A. § 922(g)(5), he contends there was insufficient evidence to prove possession of a firearm; as to 18 U.S.C.A. § 924(c), he contends there was insufficient evidence to prove possession and carrying of a firearm during and in relation to a drug trafficking crime. We disagree. In determining the sufficiency of evidence to sustain a guilty verdict, the appellate court must consider whether there is sufficient evidence, both direct and circumstantial, along with the reasonable inferences therefrom, from which a jury may find a defendant guilty beyond a reasonable doubt. United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.). cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). United States v. Parnell, 581 F.2d 1374, 1379 (10th Cir.1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 852, 59 L.Ed.2d 44 (1979). Admittedly, there is no evidence in the record that Cardenas was in actual possession of a firearm; however, possession in fact is not a prerequisite of his conviction, constructive possession being sufficient. As recently defined in this circuit, “ ‘[a] person in constructive possession of an item knowingly holds the power to exercise dominion and control over it.’ ” United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir.1987) (emphasis added) (quoting United States v. Massey, 687 F.2d 1348, 1354 (10th Cir.1982)). Here, Cardenas admitted to the police officers that he knew the gun was in the truck; when the gun was discovered, it was within effortless reach of his hands, more accessible than if it were in his own pocket. We find this sufficient evidence of his power to exercise dominion and control. Citing Medina-Ramos, Cardenas argues that in addition to knowingly holding the ability to control an object, there must be an act by which that ability is manifested and implemented. We agree. The placement of" } ]

[ { "docid": "23106250", "title": "", "text": "therefore properly denied the motion to suppress. B. Sufficiency of the Evidence This court reviews de novo the sufficiency of the evidence, “askfing] only whether taking the evidence — both direct and circumstantial, together with the reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Brown, 400 F.3d 1242, 1247 (10th Cir.2005) (quotation omitted). This court does not “assess the credibility of witnesses or weigh conflicting evidence ... [and] may reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quotation omitted). “In order to obtain a conviction against [a defendant] under § 922(g), the government was required to prove that [the defendant] had previously been convicted of a felony, [the defendant] thereafter knowingly possessed a firearm, and such possession was in or affected interstate commerce.” United States v. Michel, 446 F.3d 1122, 1128 (10th Cir.2006). McCane claims there was insufficient evidence from which the jury could find he had possession of the firearm. Possession of a firearm for purposes of 18 U.S.C. § 922(g)(1) can be either actual or constructive. Id. “Actual possession exists when a person has direct physical control over a firearm at a given time.” United States v. Jameson, 478 F.3d 1204, 1209 (10th Cir.2007). “Constructive possession exists when a person knowingly holds the power and ability to exercise dominion and control over a firearm.” Id. (quotation omitted). “When a defendant has exclusive possession of the premises on which a firearm is found, knowledge, dominion, and control can be properly inferred because of the exclusive possession alone.” Id. However, “[i]n cases of joint occupancy, where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm.” Michel, 446 F.3d at 1128 (quotation omitted). “Proximity alone ... is insufficient to establish knowledge and access to (and dominion and control over) a firearm in a joint occupancy case.” Jameson, 478" }, { "docid": "23678008", "title": "", "text": "facilitated the success of the cocaine sale by its potential use as either a means of protection or coercion. With respect to the violation of section 922(g)(1), Wright contends there was insufficient evidence to establish that he “knowingly possessed” the rifle — an essential element of the crime. We again disagree. The district court properly instructed the jury that knowing possession may be actual or constructive, and that a person knowingly in constructive possession of an item has the power to exercise dominion and control over it. See United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir.1989); United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir.1987). Viewed in the context of the drug transaction, the evidence of the close proximity of the rifle is sufficient to establish constructive possession and thus to support the jury’s verdict. Kirby claims the Government failed to prove that he had knowledge of the conspiracy. We hold there was sufficient evidence before the jury for it to infer that Kirby knowingly joined and acted in furtherance of the cocaine conspiracy when he left Houlihan’s with Wright and stationed himself near the scene of the drug deal with numerous firearms in his possession, including a loaded handgun in his lap. IX. SENTENCE ENHANCEMENT Finally, both defendants argue that their sentences were improperly enhanced pursuant to 21 U.S.C. § 851 (1988), which provides, in pertinent part: “No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.” Id. § 851(a)(1) (emphasis added). If the Government chooses to file an information pursuant to section 851, the court, after conviction but before the pronouncement of sentence, must inquire whether the defendant affirms or denies that she or he previously has been convicted as alleged in the information. Id." }, { "docid": "22841398", "title": "", "text": "921 (10th Cir.1989). Mr. Wilson focuses his challenge on the second element — that is, that there was insufficient evidence that he “knowingly possessed” the firearms and ammunition. Mr. Wilson alleges that the government failed to provide direct evidence, such as fingerprints fi*om either weapon or his actual physical control over either weapon or the ammunition when the search was conducted. “Constructive possession” — again ownership, dominion, or control — is sufficient for a conviction under § 922(g)(1); proof of actual possession is not required. See United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.1989) (finding section 922(g)(1) possession shown by demonstrating that the defendant “knowingly holds the power to exercise dominion and control over [the firearm]”) (quoting United States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982)). Dominion, control, and knowledge may be inferred by a defendant’s exclusive possession of the premises. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). To prove Mr. Wilson’s constructive possession, the government was required to show some nexus between Mr. Wilson and the firearms and ammunition. Thus, the conviction depends on whether “there [is] some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.” Id. Viewing the evidence in favor of the government, as our standard requires, we conclude that there was sufficient evidence by which a reasonable jury could conclude that Mr. Wilson knowingly possessed the firearms and ammunition. As with the constructive possession of the cocaine discussed above, the circumstantial evidence found in the house suggests that Mr. Wilson exercised sole dominion and control over the house and had constructive possession of its contents including the two SKS assault rifles and the .38 caliber ammunition. This inference is further supported by Mr. Wilson’s movement towards the room with one of the rifles during the arrest, and by the location of the other rifle in the bedroom where his belongings were found. The location of the .38 caliber bullets in the house and the prior testimony of Ms. Mannie regarding Mr. Wilson’s possession of a .38 caliber" }, { "docid": "23150598", "title": "", "text": "nearby auto sear and 30-shot clips. XII R. at 868-69. The government argues, and we agree, that this is sufficient evidence to support an inference of joint constructive possession. See, e.g., United States v. McCoy, 781 F.2d 168 (10th Cir.1985) The defendants argue that the evidence of dominion and control is too tenuous here to amount to proof beyond a reasonable doubt. In particular, Mary Sullivan argues that there was no evidence, direct or circumstantial, that she slept in or otherwise had knowledge of the contents of the room in which the gun was found. She relies on United States v. Bonham, 477 F.2d 1137 (3d Cir.1973) (en banc), for the proposition that joint occupancy of a bedroom is insufficient evidence on which to base an inference of criminal possession. Finally, she correctly asserts that “[tjhere was no evidence concerning where in the bedroom the gun was found, whether it was in plain view or hidden, or anything else about the circumstances.” Appellee’s Brief at 30. Russell Sullivan argues that he was eight to ten miles away from his home when the AR-15 was seized; that none of his fingerprints were found on the AR-15; and that the government did not introduce any evidence that he exercised dominion and control over the room in which the firearm was found. Although we agree that joint occupancy of a bedroom, without more, would be insufficient to support this conviction, the evidence in this case goes somewhat beyond that. The evidence presented at trial shows some connection between each defendant and the firearm, and supports the inference that each defendant was aware of the presence of the firearm in the master bedroom. The evidence in this case is stronger, for example, than the evidence we held sufficient in United States v. Miles, 772 F.2d 613 (10th Cir.1985). On balance, we think there is sufficient evidence from which a jury could reasonably infer that each of the Sullivans .constructively possessed the unregistered AR-15 rifle. 2. Count 4. Russell and Mary Sullivan, Eugene Fisher, Steve Brown and Jimmy Wright also challenge the sufficiency of the" }, { "docid": "23150594", "title": "", "text": "Mary Sullivan challenges the sufficiency of the evidence to sustain her conviction on Count 3 of the indictment for attempted manufacture of amphetamine. She contends that there is no evidence that she either participated in the attempt to manufacture amphetamine, or that she aided and abetted the attempted manufacture of amphetamine. We disagree. The crime of attempt requires proof of (1) the requisite criminal intent, and (2) an act or omission constituting a “substantial step” toward commission of the substantive offense. United States v. Savaiano, 843 F.2d at 1296; see also United States v. Remigio, 767 F.2d 730, 733 (10th Cir.), cert. denied, 474 U.S. 1009, 106 S.Ct. 535, 88 L.Ed.2d 465 (1985). Viewed in the light most favorable to the government, there was evidence that Mary Sullivan spoke with Evelyn Rogers on the phone concerning the proposed amphetamine cook; that she met with Evelyn Rogers in a motel room to arrange for the glassware delivery; that she participated in the glassware delivery to the Sullivan home, and the concealment of the glassware behind the house; that she traveled to Irving, Texas, with her husband to ar range for the delivery of phenylacetic acid by Steve Howell; that she participated in the recorded conversation of July 3, 1988, in which she discussed the planned amphetamine cook; and that on the day before the lab was set up, she told Steve Howell that she had been to the library “studying up ... on cooking procedures.” See X R. at 330-36, 343-44, 367, 375; XI R. at 522-25, 557. We are convinced there is sufficient evidence from which a rational trier of fact could find Mary Sullivan guilty of attempted manufacture of amphetamine beyond a reasonable doubt. C. Illegal Possession of a Firearm 1. Count 5. Defendants Russell and Mary Sullivan challenge the sufficiency of the evidence to sustain their convictions on Count 5 for possession of an unregistered firearm, an AR-15 rifle, in violation of 26 U.S.C. § 5861(d). They claim the government failed to prove the essential element of possession. Russell Sullivan challenges on the same basis his conviction on" }, { "docid": "23678007", "title": "", "text": "491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). The facilitation of the crime through the use of a firearm may be accomplished by “emboldenpng] an actor who had the opportunity or ability to display or discharge the weapon to protect [herself or] himself or intimidate others, whether or not such display or discharge in fact occurred.” Williams, 923 F.2d at 1403 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987)) (emphasis added); see United States v. Brockington, 849 F.2d 872, 876 (4th Cir.1988) (conviction proper under § 924(c)(1) if firearm present for protection or to facilitate likelihood of success, whether or not actually used). The evidence at trial showed that Wright had carried the rifle in his truck in the months preceding his arrest. After his arrest, the rifle was discovered eight feet from where he had positioned himself for the drug deal. We hold that the jury’s verdict was based on sufficient evidence to conclude that the rifle facilitated the success of the cocaine sale by its potential use as either a means of protection or coercion. With respect to the violation of section 922(g)(1), Wright contends there was insufficient evidence to establish that he “knowingly possessed” the rifle — an essential element of the crime. We again disagree. The district court properly instructed the jury that knowing possession may be actual or constructive, and that a person knowingly in constructive possession of an item has the power to exercise dominion and control over it. See United States v. Anderson, 881 F.2d 1128, 1141 (D.C.Cir.1989); United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir.1987). Viewed in the context of the drug transaction, the evidence of the close proximity of the rifle is sufficient to establish constructive possession and thus to support the jury’s verdict. Kirby claims the Government failed to prove that he had knowledge of the conspiracy. We hold there was sufficient evidence before the jury for it to infer that Kirby knowingly joined and acted in furtherance of the cocaine" }, { "docid": "13292776", "title": "", "text": "to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable. 8 U.S.C. § 1227(a)(2)(C). Although we have not found cases addressing the meaning of “possession” under this provision, we have found cases dealing with firearm possession under other federal laws. Those cases make clear that possession means both actual and constructive possession, with the latter involving the concept of control. “[Wjhile actual possession involves physical contact or like intimate association with the object possessed, constructive possession may be shown by evidence of an exercise of indirect dominion or control, either personally or through others, over objects not touched or otherwise directly controlled.” Russell G. Donaldson, What Constitutes Actual or Constructive Possession of Unregistered or Otherwise Prohibited Firearm in Violation of 26 U.S.C.A. § 5861, 133 A.L.R. Fed. 347 (1996). See United States v. Hernandez, 995 F.2d 307, 313 (1st Cir.1993)(affirming conviction under 18 U.S.C. § 922(g)(1) for possession that was constructive when firearm was on the person of a co-conspirator); United States v. Smith, 930 F.2d 1081, 1086 (5th Cir.l991)(finding control and dominion over firearm or premises to qualify as possession in violation of 26 U.S.C. § 5861 and 18 U.S.C. § 922(g)(1)); United States v. Diecidue, 603 F.2d 535, 564 (5th Cir.1979); United States v. Wells, 721 F.2d 1160, 1162 (8th Cir.1983); United States v. Barton-Rivera, 922 F.2d 549, 552 (9th Cir.1991)(“The requisite showing of possession may be made by proof of actual or constructive possession,” under 18 U.S.C. § 922(g)(1) and (5)); United States v. Hernandez, 913 F.2d 1506, 1514 (10th Cir. 1990)(“An alien may possess a firearm for purposes of § 922 through actual or constructive possession.”). Indeed, we have stated: “Constructive possession, however, is possession.” United States v. Rogers, 41 F.3d 25, 29 (1st Cir.1994)(commenting on violation of 18 U.S.C. § 922(g)(1), convicted felon in possession of a firearm). See also United States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir.1994), cert. denied," }, { "docid": "22841397", "title": "", "text": "or crack on his person, a statement tending to demonstrate that Mr. Wilson understood drug trade and distribution. This court has also indicated that the presence of a firearm in connection with drugs, as with the two assault rifles in this case, may be probative evidence of an intent to distribute the drugs. Hager, 969 F.2d at 888 (citing United States v. Bruce, 939 F.2d 1053, 1056 (D.C.Cir.1991)). Taken as a whole, the evidence was sufficient for a reasonable jury to conclude beyond a reasonable doubt that Mr. Wilson possessed the 3.74 grams of cocaine base with the intent to distribute, or aid or abet distribution of, that cocaine. 2. Felon in possession of firearms and ammunition To obtain a conviction under 18 U.S.C. § 922(g)(1) for possession by a felon of a firearm or ammunition, the government had to prove (1) Mr. Wilson was convicted of a felony; (2) he thereafter knowingly possessed a firearm and/or ammunition; and (3) the possession was in or affecting interstate commerce. United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989). Mr. Wilson focuses his challenge on the second element — that is, that there was insufficient evidence that he “knowingly possessed” the firearms and ammunition. Mr. Wilson alleges that the government failed to provide direct evidence, such as fingerprints fi*om either weapon or his actual physical control over either weapon or the ammunition when the search was conducted. “Constructive possession” — again ownership, dominion, or control — is sufficient for a conviction under § 922(g)(1); proof of actual possession is not required. See United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.1989) (finding section 922(g)(1) possession shown by demonstrating that the defendant “knowingly holds the power to exercise dominion and control over [the firearm]”) (quoting United States v. Massey, 687 F.2d 1348, 1354 (10th Cir. 1982)). Dominion, control, and knowledge may be inferred by a defendant’s exclusive possession of the premises. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). To prove Mr. Wilson’s constructive possession, the government was required to show some nexus between Mr. Wilson and the firearms" }, { "docid": "12068939", "title": "", "text": "Defendant guilty beyond a reasonable doubt of felon in possession of a firearm. We also reject Defendant’s argument that because the jury acquitted him of using or carrying a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c), the jury should have also acquitted him of violating § 922(g) because both offenses require knowing possession of a firearm. We reject this argument because there are other elements upon which the jury could have based its acquittal; for example, the jury could have decided that, although Defendant knowingly possessed a firearm when arrested, he did not possess the firearm during a drug trafficking offense. Defendant also challenges his conviction for possession of an unregistered firearm, 26 U.S.C. § 5861(d). Specifically, Defendant claims the evidence was insufficient to prove (1) he possessed a sawed-off shotgun, and (2) he knew the sawed-off shotgun “was a dangerous device that should have been registered.” On February 10, 1994, we abated this appeal pending the Supreme Court’s decision in Staples v. United States, — U.S. -, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). That ease has now been decided and is dis-positive of the second issue raised by Defendant. We easily dispose of Defendant’s first claim — ie., that the evidence was insufficient to prove he possessed a sawed-off shotgun. At trial, the government presented evidence that Defendant rented the apart-, ment and admitted to sleeping in the room and bed where the shotgun was discovered. The evidence also indicated that Defendant admitted to Officer Benson he and Stokes had sawed-off the shotgun the morning of the search. We conclude that from this evidence, a reasonable jury could find Defendant had dominion and control over the shotgun, thereby establishing constructive possession. See United States v. Sullivan, 919 F.2d 1403, 1430 (10th Cir.1990) (constructive possession whereby defendant exercises dominion and control over an object sufficient to support 26 U.S.C. § 5861(d) conviction). We now turn to Defendant’s claim that the evidence was insufficient to prove he knew the sawed-off shotgun was a “dangerous device of such type as would alert one to the likelihood" }, { "docid": "22914262", "title": "", "text": "v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Evidence is sufficient to support a conviction if, in light of the direct and circumstantial evidence presented, a reasonable jury could find the defendant guilty beyond a reasonable doubt. See id. Under § 922(g)(1), possession may be actual or constructive. See id.; United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.1989). Here, there is no evidence that Mr. Hishaw actually possessed the handgun, and the government thus argues that he had constructive possession. It notes that a witness testified that Mr. Hishaw had possessed a semiautomatic pistol on several previous occasions when he had sold cocaine. The government also maintains Mr. Hishaw’s possession of marijuana supports an inference of constructive possession. See Aple’s Br. at 13 (contending that “there is a strong indication, and undoubtedly an inferential basis[,J that drug traffickers and drug users often possess firearms”). In order to establish that constructive possession, the government must demonstrate that Mr. Hishaw “knowingly [held] ownership, dominion, or control over the object and the premises where it is found.” Mills, 29 F.3d at 549 (citing United States v. Hager, 969 F.2d 883, 888 (10th Cir.1992)). Circumstantial evidence may establish constructive possession. See id. In most cases, the defendant’s dominion, control, and knowledge may be inferred if he had exclusive possession of the premises on which the object was found. See id. However, this circuit has held that joint occupancy alone cannot sustain the inference of dominion, control and knowledge. .See id. (citing United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir.1990)). Thus, in cases of joint occupancy in which the government relies on circumstantial evidence of dominion, control, and knowledge, “it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband.” Id. There must be some evidence “ ‘supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.’ ” Id. at 550 (quoting United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993)). Applying those principles, this circuit has deemed the government’s evidence insufficient to" }, { "docid": "23150595", "title": "", "text": "house; that she traveled to Irving, Texas, with her husband to ar range for the delivery of phenylacetic acid by Steve Howell; that she participated in the recorded conversation of July 3, 1988, in which she discussed the planned amphetamine cook; and that on the day before the lab was set up, she told Steve Howell that she had been to the library “studying up ... on cooking procedures.” See X R. at 330-36, 343-44, 367, 375; XI R. at 522-25, 557. We are convinced there is sufficient evidence from which a rational trier of fact could find Mary Sullivan guilty of attempted manufacture of amphetamine beyond a reasonable doubt. C. Illegal Possession of a Firearm 1. Count 5. Defendants Russell and Mary Sullivan challenge the sufficiency of the evidence to sustain their convictions on Count 5 for possession of an unregistered firearm, an AR-15 rifle, in violation of 26 U.S.C. § 5861(d). They claim the government failed to prove the essential element of possession. Russell Sullivan challenges on the same basis his conviction on Count 7 for illegal possession of the same firearm after former conviction of a felony in violation of 18 U.S.C. § 922(g). The government does not point to any evidence of actual possession, but argues that the evidence presented at trial is sufficient to support an inference of joint constructive possession by Mary and Russell Sullivan. We agree. It is well settled that the required “possession” for purposes of 26 U.S.C. § 5861(d) includes both actual and constructive possession. United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.), cert. denied,-U.S.-, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). Constructive possession exists when a person does not have actual possession, but “knowingly holds the power to exercise dominion and control” over an object. Cardenas, 864 F.2d at 1533 (quoting United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir.1987)). Furthermore, possession need not be exclusive; it may be joint, and therefore does not require that exercise of dominion and control by others be disproved. United States v. Rivera, 844 F.2d 916, 926 (2d Cir.1988). The government" }, { "docid": "22968517", "title": "", "text": "elements (1) and (3); thus, possession of the firearm is the only contested issue under section 922(g). As Mr. Garrett concedes, the principles of constructive possession are applicable to the questions of possession under section 922(g). See United States v. Sanchez, 859 F.2d 483, 486 (7th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1144, 103 L.Ed 2d 204, (1989); United States v. Pirovolos, 844 F.2d 415, 423 (7th Cir.), cert. denied, — U.S.-, 109 S.Ct. 147, 102 L.Ed.2d 119 (1988); see also United States v. Vincent, 901 F.2d 97, 98 n. 1 (8th Cir.1990); United States v. Patterson, 886 F.2d 217, 219 (8th Cir.1989) (per curiam); United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.), cert. denied, — U.S.-, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989); United States v. Craven, 478 F.2d 1329, 1333-34 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973). In the context of a similar statute, 26 U.S.C. § 5861(d), which prohibits possession of an unregistered firearm, this court stated that “[possession may be either actual or constructive and it need not be exclusive but may be joint.... Actual possession exists when a tangible object is in the immediate possession or control of the party. Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others_ Both actual possession and constructive possession may be proved by direct or circumstantial evidence. It is not necessary that such evidence remove every reasonable hypothesis except that of guilt.” United States v. Taylor, 728 F.2d 864, 868 (7th Cir.1984) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973)) (citations omitted) (emphasis supplied by the Taylor court). We conclude that the evidence, viewed in the light most favorable to the government, is sufficient to support a finding of constructive possession for purposes of the section 922(g) conviction. The police saw Mr. Garrett using a set" }, { "docid": "23287528", "title": "", "text": "be drawn therefrom-is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.\" United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1657, 90 L.Ed.2d 199 (1986). Under 18 U.S.C. § 922(g)(1), the government is required to show that Mifis knowingly possessed a firearm. \"{Hjowever, possession in fact is not a prerequisite of his conviction [under § 922(g) 1, constructive possession being sufficient.\" United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.), cert. denied, 491 U.S. 909, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). A person has constructive possession when he or she knowingly holds ownership, dominion, or control over the object and the premises where it is found. Hager, 969 F.2d at 888. The government may prove constructive possession by circumstantial evidence. Id. Dominion, control, and knowledge, in most cases, may be inferred if a defendant had exclusive possession of the premises; however joint occupancy alone cannot sustain such an inference. United States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir.1990). Accord United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1310, 127 L.Ed.2d 660 (1994); United States v. Ford, 993 F.2d 249, 252 (D.C.Cir.1993). In cases of joint occupancy, where the government seeks to prove constructive possession by circumstantial evidence, it must present evidence to show some connection or nexus between the defendant and the firearm or other contraband. See Sullivan, 919 F.2d at 1431. A conviction based upon constructive possession will be upheld “only when there [is] some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband.” Mergerson, 4 F.3d at 349. Here, evidence to support an inference that the defendant was aware of the firearms contained in the compartment and also had a right of physical access to those firearms was required. See Sullivan, 919 F.2d at 1431. Based on our review of the record,~ we hold that there was insufficient evidence for a" }, { "docid": "23150596", "title": "", "text": "Count 7 for illegal possession of the same firearm after former conviction of a felony in violation of 18 U.S.C. § 922(g). The government does not point to any evidence of actual possession, but argues that the evidence presented at trial is sufficient to support an inference of joint constructive possession by Mary and Russell Sullivan. We agree. It is well settled that the required “possession” for purposes of 26 U.S.C. § 5861(d) includes both actual and constructive possession. United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.), cert. denied,-U.S.-, 109 S.Ct. 3197, 105 L.Ed.2d 705 (1989). Constructive possession exists when a person does not have actual possession, but “knowingly holds the power to exercise dominion and control” over an object. Cardenas, 864 F.2d at 1533 (quoting United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir.1987)). Furthermore, possession need not be exclusive; it may be joint, and therefore does not require that exercise of dominion and control by others be disproved. United States v. Rivera, 844 F.2d 916, 926 (2d Cir.1988). The government points to the following evidence in support of the jury’s verdict. First, Evelyn Rogers testified that when she met with Mary and Russell Sullivan in Irving, Texas, Russell displayed a “clip” that he could drop into his AR-15 in just a matter of seconds that would make it “rock and roll.” X R. at 375-76. Second, Steve Brown (Mary Sullivan’s son) testified that he purchased the AR-15 in question at a pawn shop and had given it to his younger brother, since deceased. XVII R. at 1914. He testified that he had taken the AR-15 and several other guns to his mother’s house after some of his guns were stolen, and that after his brother’s death, “we moved the gun cabinet and stuff” into his mother’s bedroom. Id. at 1915. Mary Sullivan admitted that the AR-15 belonged to her deceased son and that she kept all of his property after his death, including the guns. Id. at 2073-74. Finally, the machine gun was found in the master bedroom of the Sullivans’ home along with a" }, { "docid": "23150597", "title": "", "text": "points to the following evidence in support of the jury’s verdict. First, Evelyn Rogers testified that when she met with Mary and Russell Sullivan in Irving, Texas, Russell displayed a “clip” that he could drop into his AR-15 in just a matter of seconds that would make it “rock and roll.” X R. at 375-76. Second, Steve Brown (Mary Sullivan’s son) testified that he purchased the AR-15 in question at a pawn shop and had given it to his younger brother, since deceased. XVII R. at 1914. He testified that he had taken the AR-15 and several other guns to his mother’s house after some of his guns were stolen, and that after his brother’s death, “we moved the gun cabinet and stuff” into his mother’s bedroom. Id. at 1915. Mary Sullivan admitted that the AR-15 belonged to her deceased son and that she kept all of his property after his death, including the guns. Id. at 2073-74. Finally, the machine gun was found in the master bedroom of the Sullivans’ home along with a nearby auto sear and 30-shot clips. XII R. at 868-69. The government argues, and we agree, that this is sufficient evidence to support an inference of joint constructive possession. See, e.g., United States v. McCoy, 781 F.2d 168 (10th Cir.1985) The defendants argue that the evidence of dominion and control is too tenuous here to amount to proof beyond a reasonable doubt. In particular, Mary Sullivan argues that there was no evidence, direct or circumstantial, that she slept in or otherwise had knowledge of the contents of the room in which the gun was found. She relies on United States v. Bonham, 477 F.2d 1137 (3d Cir.1973) (en banc), for the proposition that joint occupancy of a bedroom is insufficient evidence on which to base an inference of criminal possession. Finally, she correctly asserts that “[tjhere was no evidence concerning where in the bedroom the gun was found, whether it was in plain view or hidden, or anything else about the circumstances.” Appellee’s Brief at 30. Russell Sullivan argues that he was eight to ten" }, { "docid": "23150601", "title": "", "text": "a firearm and it “was an integral part of his criminal undertaking and its availability increased the likelihood that the criminal undertaking would succeed.” United States v. Matra, 841 F.2d 837, 843 (8th Cir.1988). See also United States v. Meggett, 875 F.2d 24, 29 (2d Cir.1989) (five firearms secreted about a defendant’s apartment). Here there was evidence that there was a substantial number of weapons at the Sullivan and Fisher residences, that it was a common practice for the male defendants to carry firearms, that three of the defendants possessed weapons at the laboratory site, and that two defendants took weapons to investí- gate possible trouble with the “feds.” We feel the evidence is sufficient to sustain the convictions of Eugene Fisher, Steve Brown, Jimmy Wright and Russell Sullivan on Count 4. However, we are unable to agree with the government that its evidence was sufficient with respect to the conviction of Mary Sullivan on Count 4. The government does not cite any specific evidence to indicate that she carried or used a firearm. We agree that there was sufficient proof that both Mary and Russell Sullivan had joint and constructive possession of the AR-15 rifle at their home, but that was in connection with a conviction for possession of an unregistered firearm. Count 4, however, is a different substantive charge under 18 U.S.C. § 924(c). As to that offense, we are required to determine whether the proof was sufficient to sustain the charge under that section. We are persuaded to agree with the Ninth Circuit’s construction of the statute in United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (opinion of Kennedy, J.), that “the evident purpose of [§ 924(c) ] was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.” This results from the inclusion within the statutory elements of the language that the using or carrying of the firearm must be “during and in relation to” a crime of violence or a drug trafficking crime. With this in mind, we do not find sufficient evidence in" }, { "docid": "23150599", "title": "", "text": "miles away from his home when the AR-15 was seized; that none of his fingerprints were found on the AR-15; and that the government did not introduce any evidence that he exercised dominion and control over the room in which the firearm was found. Although we agree that joint occupancy of a bedroom, without more, would be insufficient to support this conviction, the evidence in this case goes somewhat beyond that. The evidence presented at trial shows some connection between each defendant and the firearm, and supports the inference that each defendant was aware of the presence of the firearm in the master bedroom. The evidence in this case is stronger, for example, than the evidence we held sufficient in United States v. Miles, 772 F.2d 613 (10th Cir.1985). On balance, we think there is sufficient evidence from which a jury could reasonably infer that each of the Sullivans .constructively possessed the unregistered AR-15 rifle. 2. Count 4. Russell and Mary Sullivan, Eugene Fisher, Steve Brown and Jimmy Wright also challenge the sufficiency of the evidence to sustain their convictions on Count 4 for “knowingly and unlawfully us[ing] or carrying firearms during the commission of a felony ..., to wit: conspiracy to manufacture amphetamine,.... ” in violation of 18 U.S.C. § 924(c)(1). In judging the sufficiency of the evidence, we are bound to view the proof presented in the light most favorable to the government to ascertain if there is sufficient substantial proof, direct and circumstantial, together with reasonable inferences to be drawn therefrom, from which a jury might find a defendant guilty beyond a reasonable doubt. United States v. Wright, 826 F.2d 938, 946 (10th Cir.1987); United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir.1972). We conclude that the record contains sufficient evidence to sustain the convictions of the defendants other than Mary Sullivan, and hold that her conviction on this count must be set aside. In United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989), we agreed with other courts that the “uses” element of § 924(c)(1) is satisfied where a defendant has “ready access” to" }, { "docid": "23150602", "title": "", "text": "agree that there was sufficient proof that both Mary and Russell Sullivan had joint and constructive possession of the AR-15 rifle at their home, but that was in connection with a conviction for possession of an unregistered firearm. Count 4, however, is a different substantive charge under 18 U.S.C. § 924(c). As to that offense, we are required to determine whether the proof was sufficient to sustain the charge under that section. We are persuaded to agree with the Ninth Circuit’s construction of the statute in United States v. Stewart, 779 F.2d 538, 540 (9th Cir.1985) (opinion of Kennedy, J.), that “the evident purpose of [§ 924(c) ] was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony.” This results from the inclusion within the statutory elements of the language that the using or carrying of the firearm must be “during and in relation to” a crime of violence or a drug trafficking crime. With this in mind, we do not find sufficient evidence in this record that Mary Sullivan carried or used firearms “during and in relation to” the underlying drug conspiracy offense. The constructive possession proof sufficient with respect to the charge concerning possession of the unregistered AR-15 rifle is not sufficient to sustain the Count 4 conviction within the meaning of § 924(c). A conviction must be supported by sufficient substantial evidence, and not mere suspicion of guilt. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.1987). In sum, we hold that the evidence was sufficient to support the convictions of defendants Eugene Fisher, Steve Brown, Jimmy Wright and Russell Sullivan on Count 4. Therefore, their argument that retrial of them on this Count 4 charge would be barred by Double Jeopardy principles, Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2151, 57 L.Ed.2d 1 (1978), is without merit. However, the claim to this effect by Mary Sullivan is good, and a judgment of acquittal for her with respect to Count 4 will be entered by the district court on remand. Id. at" }, { "docid": "22968538", "title": "", "text": "this five year term to Mr. Garrett’s mandatory fifteen year sentence for violation of 18 U.S.C. § 922(g)(1) guaranteed that his minimum total sentence would be twenty years. (Because Mr. Garrett had three previous felony convictions, he was subject to an enhanced statutory penalty of fifteen years imprisonment for his violation of 18 U.S.C. § 922(g). 18 U.S.C. § 924(e)(1). He does not appeal this statutory enhancement of his punishment.). . The government has not appealed the district court's decision to depart from the guidelines. . The court also noted in Taylor that \"proof that a person actually or constructively possessed an unregistered firearm, in violation of 26 U.S.C. § 5861(d), is sufficient proof that the person 'knowingly possessed' the unregistered firearm in question.\" 728 F.2d at 869 (emphasis supplied). Such a conclusion follows from the test for constructive possession, which requires that a defendant know of the contraband before he can intend to exercise dominion or control over it. Similarly, we believe that the evidence of Mr. Garrett’s constructive possession of the weapon supports the conclusion that he \"knowingly possessed” the firearm. See United States v. McNeal, 900 F.2d 119, 121-22 (7th Cir.1990) (for purposes of section 922(g)(1) conviction, circumstantial evidence was sufficient to establish that defendant knowingly possessed gun found in his car after police heard shots and then saw defendant’s car travelling from apparent direction where shots were fired); United States v. Edun, 890 F.2d 983, 987 (7th Cir.1989) (proof that the defendant \"knowingly carried” a firearm in violation of § 924(c) is a \" 'rudimentary mental element’\" that could be established either by direct or circumstantial evidence) (quoting United States v. Barber, 594 F.2d 1242, 1244 (9th Cir.), cert. denied, 444 U.S. 835, 100 S.Ct. 69, 62 L.Ed.2d 46 (1979)). In Edun, the evidence supported a conclusion that the defendant knew of the weapon found in the trunk of a car toward which he and a drug courier were walking when arrested. . See, e.g., United States v. Jackson, 835 F.2d 1195, 1196 (7th Cir.1987) (conviction affirmed under predecessor statute of § 922(g) where loaded gun" }, { "docid": "22914261", "title": "", "text": "to suppress the cocaine discovered by Sergeant Alvarado during the July 10, 1998, pat-down search of Mr. Hishaw. B. Section 922(g)(1) conviction Mr. Hishaw contends that the evidence was insufficient to support his conviction for possessing a firearm after conviction of a felony, a violation of 18 U.S.C. § 922(g)(1). In order to prove a § 922(g)(1) violation, the government must establish the following elements beyond a reasonable doubt: (1) that the defendant was previously convicted of a felony; (2) that the defendant thereafter knowingly possessed a firearm; and (3) that the possession was in or affecting interstate commerce. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.1997). Mr. Hish-aw focuses on the second element, arguing that the government failed to prove beyond a reasonable doubt that he knowingly possessed the Norinco nine-millimeter semiautomatic pistol that police officers discovered under the passenger’s seat of the car driven by Mr. Hishaw on June 27, 1998. In assessing that argument, we view the record in the light most favorable to the government. See United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Evidence is sufficient to support a conviction if, in light of the direct and circumstantial evidence presented, a reasonable jury could find the defendant guilty beyond a reasonable doubt. See id. Under § 922(g)(1), possession may be actual or constructive. See id.; United States v. Cardenas, 864 F.2d 1528, 1533 (10th Cir.1989). Here, there is no evidence that Mr. Hishaw actually possessed the handgun, and the government thus argues that he had constructive possession. It notes that a witness testified that Mr. Hishaw had possessed a semiautomatic pistol on several previous occasions when he had sold cocaine. The government also maintains Mr. Hishaw’s possession of marijuana supports an inference of constructive possession. See Aple’s Br. at 13 (contending that “there is a strong indication, and undoubtedly an inferential basis[,J that drug traffickers and drug users often possess firearms”). In order to establish that constructive possession, the government must demonstrate that Mr. Hishaw “knowingly [held] ownership, dominion, or control over the object and the premises where it is" } ]

[ { "docid": "5673540", "title": "", "text": "ORDER GRANTING SUMMARY JUDGMENT WOLLENBERG, District Judge. Plaintiff Charles Dennis Thompson brings this action under the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000-16, claiming he was terminated from employment as a Special Agent with the Bureau of Narcotics and Dangerous Drugs (hereinafter “the Bureau”) on account of his race. On April 7, 1972, plaintiff was informed by the Bureau that his employment was terminated, and he filed a Complaint of Discrimination with the Equal Employment Opportunity Officer of the Bureau on May 10, 1972. Subsequently, a thorough investigation of plaintiff’s charges was made, and plaintiff was provided a complete summary of the investigation, including findings and recommendations, in a letter dated December 4, 1972, from Kenneth G. Cloud, Equal Employment Opportunity Officer for the Bureau. That letter is a part of the record in this case and is included in the compilation of certified copies of personnel records regarding plaintiff and is attached to defendant’s motion for summary judgment filed May 3, 1973. Hereinafter this compilation of personnel records will be referred to as the “Administrative Record”. The case is now before the Court on defendant’s second motion for summary judgment. In an order filed June 12, 1973, 360 F.Supp. 255, the Court denied “defendant’s” first motion for summary judgment and held that under the Equal Employment Opportunity Act plaintiff is entitled to a trial de novo on his charges of racial discrimination. Since then, the Court has had the benefit of three other decisions which have considered the same question and held that a trial de novo is not necessarily required in district court actions under § 2000e-16. Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Williams v. Mumford, Civ. No. 1633-72 (D.D.C. filed August 20, 1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). In Hackley v. Johnson, supra, which was relied upon by both the other cases cited, Judge Gesell meticulously considered the text, purpose and legislative history of the Equal Employment Opportunity Act and concluded no new hearing in district court is necessary if “the clear weight of the evidence” in the administrative record supports" } ]

[ { "docid": "8969138", "title": "", "text": "civil action without prior compilation of an administrative hearing record, are concededly entitled to a trial de novo on their discrimination claims in the District Court. See Grubbs v. Butz, 169 U.S.App.D.C. 82, 514 F.2d 1323 (1975); brief for appellees at 27, 40, 59-60. . 360 F.Supp. at 1250, 1252 (footnote omitted). But see also note 6 supra. . See generally, 171 U.S.App.D.C. pp. ---, ---, 520 F.2d pp. 118-122, 142-148 infra. The District Courts appear to be hopelessly divided on the question whether federal employees have the right to a trial de novo on their Title VII claims. Compare, e. g., Baca v. Butz, 376 F.Supp. 1005 (D.N.M.1974), Thompson v. U. S. Dept. of Justice, Bureau of Narcotics & Dangerous Drugs, 372 F.Supp. 762 (N.D.Cal.1974), Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C.1974), Tomlin v. U. S. Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974), Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973), Abrams v. Ohio, 383 F.Supp. 450 (N.D.Ohio 1974), Guilday v. U. S. Department of Justice, 385 F.Supp. 1096 (D.Del.1974) (denying trial de novo), with, e. g., Jackson v. U. S. Civil Service Commission, 379 F.Supp. 589 (S.D.Tex.1973), Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.1973), Henderson v. Defense Contract Administrative Services Region, N.Y., 370 F.Supp. 180 (S.D.N.Y.1973), Griffin v. U. S. Postal Service, 385 F.Supp. 274 (M.D.Fla.1973), Robinson v. Klossen, 9 EPD ¶ 9954 (E.D.Ark., Oct. 3, 1974), Sylvester v. U. S. Postal Service, 393 F.Supp. 1334 (S.D.Tex.1975), summarized in 43 U.S.L.Week 2468 (May 20, 1975) (absolute right to trial de novo). See also, e. g., Correathers v. Alexander, 9 EPD ¶ 9858 (D.Colo., Dec. 11, 1974); McLaughlin v. Callaway, 382 F.Supp. 885 (S.D.Ala.1974) (trial de novo ordered as exercise of court’s discretion); Robinson v. Warner, 8 EPD ¶ 9452 (D.D.C., June 24, 1974) (plaintiff granted summary judgment on basis of administrative record supplemented by discovery). And those courts which deny the right to a trial de novo are severely divided as to the standard of review that should be applied to the administrative record. See note 172 infra. The trial de novo question is now reaching, the" }, { "docid": "14773380", "title": "", "text": "Contract Administration Services Region, S.D.N.Y., 370 F.Supp. 180 (1973) ; Jackson v. United States Civil Service Com’n, S.D.Tex., 379 F.Supp. 589 (1973) ; Gautier v. Weinberger, D.D.C., 7 FEP Cases 473 (1973) ; Grubbs v. Butz, D.D.C., 6 FEP Cases 432 (1973), appeal pending, D.C.Cir. No. 73-1955; Hackley v. Johnson, D.D.C., 360 F.Supp. 1247 (1973), appeal pending on other issues, D.C.Cir. No. 73-2027; Harrison v. Butz, D.D.C., 375 F.Supp. 1056 (1973) ; Pointer v. Sampson, 62 F.R.D. 689 (1973), appeal pending on other issues, D.C.Cir. No. 73-1937; Walker v. Kleindienst, D.D.C., 357 F.Supp. 749 (1973) ; Johnson v. Froehlke, D.Md., 5 FEP Cases 1138 (1973). But see Feiger v. Warner, S.D.Cal., 7 FEP Cases 784 (1974) ; Palmer v. Rogers, D.D.C., 6 FEP Cases 892 (1973), appeal pending, D.C.Cir. No. 73-2110; Hill-Vincent v. Richardson, N.D.Ill., 359 F.Supp. 308 (1973) ; Mosely v. United States, S.D.Cal., 6 FEP Cases 462 (1973) ; Freeman v. Defense Constr. Supply Center, S.D.Ohio, 5 FEP Cases (1972), appeal dismissed, 6 Cir. No. 72-2157 (April 20, 1973). . The right has been assured by a series of Executive Orders dating back at least to 1948. See E.O. 9980, 13 Fed.Reg. 4311 (1948) ; E.O. 10590, 20 Fed.Reg. 409 (1955) ; E.O. 10925, 26 Fed.Reg, 1977 (1961) ; E.O. 11246, 30 Fed.Reg. 12319 (1965) ; E.O. 11478, 34 Fed.Reg. 12985 (1969). . While Koger involved a proceeding pending administratively on March 24, 1972, we see no reason why its rationale should not apply to eases which were properly pending in District Courts on that date and in which’ all administrative remedies had been exhausted. See Henderson v. Defense Contract Administration Services Region, supra note 4, 370 F.Supp. at 181-183; Walker v. Kleindienst, supra note 4, 357 F.Supp. at 752. . MR. POLHAUS [counsel for plaintiff] : * * * TT ]here is a motion which the plaintiff has filed for leave to amend the complaint to include as a basis for recovery the recently enacted Equal Employment Opportunity Act, which was passed subsequent to the filing of the original complaint. We believe it is applicable. THE COURT" }, { "docid": "921201", "title": "", "text": "raised by the aggrieved person.” There is a difference of opinion between the parties with respect to the scope of review of the United States District Court. Defendant contends that the District Court is limited to a review of the administrative record, whereas the plaintiff contends that there is a right to a trial de novo. Reference to the Congressional Record indicates that Congress intended in the 1972 Amendment to afford the judicial review accorded to previously reviewable personnel decisions. “Finally, written expressly into the law is a provision enabling an aggrieved Federal employee to file an action in the District Court for a review of the administrative proceeding record after a final order by his agency or by the Civil Service Commission if he is dissatisfied with that decision.” [92d Cong., 2nd Sess., Congressional Record, S.2280 (February 22, 1972) (remarks of Senator Williams)]. Accordingly, there is now ample authority to establish that the judicial review provided for in the 1972 Amendment is limited to a review of the record of the administrative proceeding. Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). In the recent case, Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C. filed April 23, 1974) the court stated: “There is conflict in reported cases but the Court is persuaded that it was the clear intent of Congress to accord federal employees, alleging discrimination, evidentiary hearings at the agency level, and thereafter to afford a review of the administrative record in a district court after exhaustion of all available administrative remedies.” (citations omitted) It is significant that the California court which held in Thompson v. Dept. of Justice, 360 F.Supp. 255 (N.D.Cal. 1973) that a plaintiff was entitled to a trial de novo on a charge of racial discrimination, reversed itself on reconsideration, relying upon Hackley v. Johnson, supra; Handy v. Gayler, supra, and Williams v. Mumford, 6 EPD ¶ 8785. The court, after finding that the plaintiff had voluntarily waived the right to an administrative hearing, made this significant statement: “This Court would be improperly tampering with the administrative process if it" }, { "docid": "1737567", "title": "", "text": "the Spencer complaint to DCA for the full evidentiary hearing contemplated by the Equal Employment Opportunity Act of 1972 (the 1972 Act) and 5 C.F.R. § 713.218. By order filed October 26, 1973, the Court denied the motion and further held that plaintiffs were entitled to litigate the case “in the same general manner as cases involving private employers are litigated” pursuant to Title VII. Having had further opportunity to review the Spencer complaint, the statute upon which it is based, the legislative history of that statute and the developing body of case law in the field, the Court now concludes that in the interests of justice, the Order of October 26, 1972 should be vacated, and that disposition be made as hereinafter set out as to each plaintiff. A. Spencer There is conflict in reported cases but the Court is persuaded that it was the clear intent of Congress to accord federal employees, alleging discrimination, evidentiary hearings at the agency level, and thereafter to afford a review of the administrative record in a district court after exhaustion of all available administrative remedies. Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) (Gesell, J.); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C., 1974) (Gasch, J.). See also Thompson v. Department of Justice, 372 F.Supp. 762 (N.D.Cal.1974) [reversing prior decision in 360 F.Supp. 255]; Chandler v. Johnson, 7 (CCH) EPD ¶ 9139 (C.D.Cal.1973); Tomlin v. Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974); Gautier v. Weinberger, 6 (CCH) EPD ¶ 9001 (D.D.C.1973) (Gasch, J.); Williams v. Mumford, 6 FEP Cases 483 (D.D.C.1973) (Jones, J.). Contra, Henderson v. Defense Contract Administration Services Region New York, 370 F.Supp. 180 (S.D.N.Y.1973); Jackson v. U. S. Civil Service Commission, C.A. 72-H-1003 (S.D.Tex., filed Dec. 13, 1973); Griffin v. U. S. Postal Service, No. 72-487-Civ-J-T (M.D.Fla., filed Feb. 7, 1973). The review of the administrative record, after exhaustion of administrative remedies, does not contemplate a trial de novo. This conclusion is based upon the language of the 1972 Act, the legislative history and the reasoning of Hackley, Handy, Pointer and Thompson." }, { "docid": "10653535", "title": "", "text": "important, this Court cannot accept the logical corollary to the Government’s argument — that providing no judicial review whatsoever would be a compliment to the Civil Service Commission. What is at stake here is the degree of public certainty that there is no discrimination in federal employment. Opting for greater certainty does not disserve the Civil Service Commission. Having determined that more than the “substantial evidence” standard is required, this Court must define the proper standard with better precision. In Hackley v. Johnson, Judge Gesell held that an absence of discrimination should be established by the “clear weight of the evidence”, 360 F.Supp. at 1252, but in applying that standard to the two cases there at issue, Judge Gesell upheld administrative findings supported by a “preponderance” of the evidence, id., at 1253, 1255. It might be argued that “clear weight of the evidence” is synonymous with phrases like “clear and convincing proof” which require persuasion by more than a preponderance of the evidence. See, McCormick on Evidence § 340 (2d ed. 1972). But since the preponderance standard was actually ap plied in Hackley and because it is the normal burden of persuasion in civil litigation, this Court will require that the absence of discrimination be established by the preponderance of evidence in the administrative record. . Plaintiff is white and Christian. . Remarks of a similar tenor were made by Senator Harrison Williams, Chairman of the Senate Committee on Labor and Public Welfare and floor manager of the Committee Bill. 118 Cong.Rec.S. 2230 (daily ed. February 22, 1972) ; Senate Committee on Labor and Public Welfare Compilation, Legislative History of the Equal Employment Act of 1972, 92d Cong., 2d Sess. (1972), at 1727. But see, Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974). . 118 Cong.Rec.S. 2280-81 (daily ed. February 22, 1972) (remarks of Senator Williams) . . See Pointer v. Sampson, 62 F.R.D. 689. Furthermore, Civil Service Commission regulations provide significant procedural rights for aggrieved employees. Id., at 692. . Evans v. Johnson, Civil No. 73-2520-MML (C.D.Cal. April 26, 1974) ; Pointer v. Sampson, supra; Thompson v. United States Department" }, { "docid": "4220956", "title": "", "text": "§ 2000e-16(c) (Supp. II, 1972) provides that an employee who is aggrieved may “[wjithin thirty days of receipt of notice of final action ... or after one hundred and eighty days from the filing of the initial charge . . . until such time as final action may be taken . . . or by the failure to take final action on his complaint, file a civil action as provided in section 2000e-5 of this title. . . .” Section 717(d), 42 U.S.C. § 2000e-16(d) (Supp. II, 1972) then makes applicable the “provisions of 2000e-5(f) through (k) of this title.” The federal district courts which have spoken to this issue are split. Several have held that a review of the legislative history of the Equal Employment Opportunity Act of 1972 indicated an intent on the part of Congress to provide a plaintiff in a federal employment discrimination case with the same right to review as is enjoyed by private sector employees. Henderson v. Defense Contract Admin. Serv. Reg. N. Y., 370 F. Supp. 180 (S.D.N.Y.1973). Jackson v. United States Civil Service Commission, Civil No. 72-H—1003 (S.D.Tex., filed Dec. 13, 1973). Griffin v. United States Postal Service, 385 F.Supp. 273 (M.D. Fla., 1973). Several courts have taken a contra position. The court in Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973), rejected the contention that the 1972 Act contained any requirement of an automatic trial de novo. Similarly, the court in Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973), ruled that the 1972 Act, envisioned only a review of the administrative record. See Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C., filed Apr. 23, 1974). Pointer v. Sampson, 62 F.R.D. 689 (D.D.C., filed Apr. 18, 1974). Williams v. Mumford, Civil No. 1633-72 (D.D.C., filed Aug. 17, 1973). It is also interesting to note that the court in Thompson v. United States Dept. of Justice, 372 F.Supp. 762 (N.D.Cal.1974), upon which many of the district courts holding in favor of a trial de novo relied, recently reversed itself and held in favor of review of the administrative record. This court is persuaded by the reasoning" }, { "docid": "8969139", "title": "", "text": "novo), with, e. g., Jackson v. U. S. Civil Service Commission, 379 F.Supp. 589 (S.D.Tex.1973), Reynolds v. Wise, 375 F.Supp. 145 (N.D.Tex.1973), Henderson v. Defense Contract Administrative Services Region, N.Y., 370 F.Supp. 180 (S.D.N.Y.1973), Griffin v. U. S. Postal Service, 385 F.Supp. 274 (M.D.Fla.1973), Robinson v. Klossen, 9 EPD ¶ 9954 (E.D.Ark., Oct. 3, 1974), Sylvester v. U. S. Postal Service, 393 F.Supp. 1334 (S.D.Tex.1975), summarized in 43 U.S.L.Week 2468 (May 20, 1975) (absolute right to trial de novo). See also, e. g., Correathers v. Alexander, 9 EPD ¶ 9858 (D.Colo., Dec. 11, 1974); McLaughlin v. Callaway, 382 F.Supp. 885 (S.D.Ala.1974) (trial de novo ordered as exercise of court’s discretion); Robinson v. Warner, 8 EPD ¶ 9452 (D.D.C., June 24, 1974) (plaintiff granted summary judgment on basis of administrative record supplemented by discovery). And those courts which deny the right to a trial de novo are severely divided as to the standard of review that should be applied to the administrative record. See note 172 infra. The trial de novo question is now reaching, the Courts of Appeals, which are also divided as to the proper answer. Compare Salone v. United States, 511 F.2d 902, 904 (10th Cir. 1975) (denying trial de novo “for the reasons stated by the court in Hackley”), and Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975) (no abuse of discretion in trial court’s denial of request for trial de novo), with Sperling v. United States, 515 F.2d 465 (3d Cir. 1975), summarized in 43 U.S.L.Week 2448 (May 6, 1975) (absolute right to trial de novo) and Caro v. Schultz, No. 74-1728 (7th Cir., Sept. 3, 1975) (absolute right to trial de novo). Commentators have also reached apparently conflicting conclusions concerning the issue. Compare Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824, 853-857 (1972) (“Unlike review of agency action pursuant to section 10 of the [Administrative] Procedure Act whereby the court merely determines whether an agency’s action is supported by substantial evidence, an action by an aggrieved federal employee under the 1972 Act requires a trial de" }, { "docid": "1737576", "title": "", "text": "amendment of Exec. Order 11478 by Exec. Order No. 11590 is of no consequence in this case. Additional jurisdictional premises are 28 U.S.C. §§ 1331, 1361 (1970). . The DCA final decision was in full conformity with 5 C.F.R. § 713.221. . The traditional remedy for aggrieved federal employees, in personnel matters of a non-Title VII nature, is judicial review on the record after exhaustion of all administrative remedies. See Polcover v. Secretary of the Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223 (1973). Cf. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) ; Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957). See Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), for exhaustion of state administrative remedies in a civil rights case. . This conclusion necessarily carries with it a denial of class action certification. Where there is review on the record and no trial de novo, there is no class action. But see Richerson v. Fargo, 61 F.R.D. 641 (E.D.Pa., filed Feb. 5, 1974), where the Court did grant, class action certification in a federal employee discrimination case brought pursuant to the 1972 Act. See generally Miller, Class Actions and Employment Discrimination under Title VII of the Civil Rights Act of 1964, 43 U.Miss.L.J. 275 (1972) ; Developments in the Law: Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971). . See Legislative History of the Equal Employment Opportunity Act of 1972 (H.R. 1746, P.L. 92-261), Subcomm. on Labor of Senate Comm. on Labor and Public Welfare, 92d Cong., 2d Sess. (Comm. Print 1972), a compilation of bills, reports and debates, culminating in the enactment of the 1972 Act. See generally Sape and Hart, Title VII Reconsidered : The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972). . See, e. g., the detailed discussion by Judge Gasch in Pointer v. Sampson, supra, Memorandum at 7-9, concerning the statements of Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare and also floor manager of the Committee Bill, S.2515" }, { "docid": "13256815", "title": "", "text": "2000e-16(b) (2) (Supp. II, 1972). . 42 U.S.C. § 2000e-16(b)(3) (Supp. II, 1972). . See note 33, infra. . gee, e. g., Oatis v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968) ; Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) ; see generally, Miller, Class Actions and Employment Discrimination Under Title VII of the Civil Rights Act of 1964, 43 Miss.L.J. 275 (1972). . McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . 2A, Sutherland, Statutes and Statutory Construction, § 46.05 at 56 (4th ed. 1973) (hereinafter referred to as Sutherland). . References to the legislative history will be cites to the Senate Committee on Labor and Public Welfare Compilation, Legislative History of the Equal Employment Act of 1972, 92d Cong., 2d Sess. (1972) (hereinafter cited as History). . History at 425. . Statements of members of the committee in charge of the bill during its consideration on the floor of the legislature are considered by the courts in their construction of the provisions of the bill subsequently enacted into law. 2A Sutherland at § 48.14. . 118 Cong.Rec.S. 2280 (daily ed. February 22, 1972) ; History at 1727. . The Williams Bill was S. 2515, 92d Cong., 1st Sess. (1971). The bill that emerged from the Committee on Labor and Public Welfare left this cease and desist authority intact. . 116 Cong.Rec. 34404-10 (1970). This amendment was adopted by a roll-call vote of 37-29. See Sape and Hart, Title VII Reconsidered : The Employment Opportunity Act of 1972, 40 G.W.L.Rev. 824, 834-835 n. 60. . Although Civil Service Commission findings were subject to some review, Chambers v. United States, 451 F.2d 1045, 196 Ct.Cl. 186 (1971), Allison v. United States, 451 F. 2d 1035, 196 Ct.Cl. 263 (1971) . (there was controversy surrounding the propriety of these decisions), it was clear to Congress that barriers to court review by federal employees were often insurmountable. See note 15 supra and accompanying text; History at 425 (an aggrieved employee does not have access to the courts). . 5 C.F.R. § 713.218(a)" }, { "docid": "4138021", "title": "", "text": "U.S.C. § 1981. B. The motion of defendant Brennan to dismiss or for summary judgment is hereby ordered denied. In this regard the Court holds the following: 1. Plaintiff is entitled to a trial de novo for his claims under 42 U.S.C. § 2000e-16. 2. Section 2000e-16 applies retroactively to plaintiff’s federal employee claim of racial discrimination since it was pending administratively undetermined as of March 24, 1972. 3. Consideration of Section 1981 relief shall be limited to mandamus relief only. 4. The only factual issue remaining to be tried is the finding below that, but for the discrimination, plaintiff Jones would not have been promoted to the GS-15 position of ARMA for AM and the adequacy and appropriateness of the Civil Service Commission’s remedy in view of this finding. “4. 42 U.S.C. § 2000e-16. See Thompson v. United States Department of Justice, Bureau of Narcotics and Dangerous Drugs, 360 F.Supp. 255 (N.D.Cal.1973).” . The District Courts are divided on this issue. See, for example, the following cases holding judicial review of the administrative record sufficient: Napper v. Schnipke, 393 F.Supp. 379 (E.D.Mich.1975); Wright v. National Archives and Records Service, 388 F.Supp. 1205 (D.Md.1975); Russell v. Johnson, 387 F.Supp. 931 (W.D.Pa.1975); Abrams v. Johnson, 383 F.Supp. 450 (N.D. Ohio 1974); Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C.1974); Cates v. Johnson, 377 F.Supp. 1145 (W.D.Pa.1974); Baca v. Butz, 376 F.Supp. 1005 (D.N.Mex.1974); Robinson v. Warner, 370 F.Supp. 828 (D.C.R.1.1974); Bernardi v. Butz, 7 E.P.D. ¶ 9381 (N.D.Calif.1974); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974); Chandler v. Johnson, 7 E.P.D. ¶ 9139 (C.D.Calif.1973); Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974): Williams v. Mumford, 6 E.P.D. ¶ 8785 (D.D.C.1973); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). The following district courts have held that the 1972 amendments require a full trial de novo, paralleling the remedies accorded to the employees of private persons: Revis v. Laird, 391 F.Supp. 1133 (E.D.Calif.1975); Hunt v. Schlesinger, 389 F.Supp. 725 (W.D. Tenn.1974); Griffin v. United States Postal Service, 385 F.Supp. 274 (M.D.Fla.1973); Henderson v. Defense" }, { "docid": "14773379", "title": "", "text": "order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial eharge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. . A majority of District Court cases have found § 717(c) to apply retroactively. See Fears v. Catlin, D.Colo., 377 F.Supp. 291 (1974) ; Henderson v. Defense Contract Administration Services Region, S.D.N.Y., 370 F.Supp. 180 (1973) ; Jackson v. United States Civil Service Com’n, S.D.Tex., 379 F.Supp. 589 (1973) ; Gautier v. Weinberger, D.D.C., 7 FEP Cases 473 (1973) ; Grubbs v. Butz, D.D.C., 6 FEP Cases 432 (1973), appeal pending, D.C.Cir. No. 73-1955; Hackley v. Johnson, D.D.C., 360 F.Supp. 1247 (1973), appeal pending on other issues, D.C.Cir. No. 73-2027; Harrison v. Butz, D.D.C., 375 F.Supp. 1056 (1973) ; Pointer v. Sampson, 62 F.R.D. 689 (1973), appeal pending on other issues, D.C.Cir. No. 73-1937; Walker v. Kleindienst, D.D.C., 357 F.Supp. 749 (1973) ; Johnson v. Froehlke, D.Md., 5 FEP Cases 1138 (1973). But see Feiger v. Warner, S.D.Cal., 7 FEP Cases 784 (1974) ; Palmer v. Rogers, D.D.C., 6 FEP Cases 892 (1973), appeal pending, D.C.Cir. No. 73-2110; Hill-Vincent v. Richardson, N.D.Ill., 359 F.Supp. 308 (1973) ; Mosely v. United States, S.D.Cal., 6 FEP Cases 462 (1973) ; Freeman v. Defense Constr. Supply Center, S.D.Ohio, 5 FEP Cases (1972), appeal dismissed, 6 Cir. No. 72-2157 (April 20, 1973). . The right has" }, { "docid": "18798911", "title": "", "text": "F.Supp. 1145 (W.D.Pa.1974) ; Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). This view is supported by the remarks of two senators during debates on the 1972 amendment as well as by the logic that a trial de novo would result in unnecessary delays in enforcement that the 1972 amendments sought to eliminate. See, e. g., Hackley v. Johnson, supra. Furthermore, it is argued that unnecessary duplication of efforts will result if plaintiffs are permitted to re-develop evidence that was presented in an adversary hearing before the Civil Service Commission. See Abrams v. Johnson, supra. Other courts have held, however, that the amendment requires a full trial de novo, paralleling the remedies accorded to the employees of private persons. See Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y.1973); Griffin v. United States Postal Service, 385 F.Supp. 274 (M.D.Fla.1973); Jackson v. United States Postal Service, 379 F.Supp. 589 (S.D.Tex.1973). As courts and commentators have observed, the legislative history regarding the 1972 amendment to Title VII is inconclusive in determining if a federal employee is entitled to a trial de novo following the exhaustion of his administrative remedies. See Hackley v. Johnson, supra; Handy v. Gayler, supra at 678; Comment, Federal Employee Civil Actions Under the Equal Employment Opportunity Act of 1972: The Right to De Novo Review, 12 Hou.L.Rev. 178, 182-85 (1974); Comment, The Right of Federal Trial De Novo Under the Equal Employment Opportunity Act of 1972, 1974 Duke L.J. 474. Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare, stated in support of the 1972 amendment that: An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action of review of the agency proceedings in the courts by Federal employees who are not satisfied with the Agency or Commission decision. . . . The provisions adopted by the Committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as" }, { "docid": "13256817", "title": "", "text": "(1973). . 5 C.F.R. § 713.218(b) (1973). . Id. . 5 C.F.R. §713.218 (c)(2) (1973). . Id. . Id. . 5 C.F.R. § 713.218(e) (1973). . 5 C.F.R. § 713.218(f) (1973). . 5 C.F.R. § 713.218(g) (1973). . See notes 5-8 supra and accompanying text. . This, of course, assumes the agencies would take final action before the 180-day cutoff point. Agency inaction would allow the federal employee to come into court without a record. In such instances a trial on the employee’s charges could be held. It is clear Congress also considered such immediate recourse to the courts would be unusual as reflected in the Senate Report: It is expected that recourse to this remedy [immediate resort to the Courts due to agency inaction] will be the exception and not the rule, particularly once the Commission’s [at this stage, the EEOC] enforcement procedures are fully operational. In the meantime, however, the committee believes that the aggrieved person should be given an opportunity to escape the administrative process when he feels liis claim has not been given adequate attention. Senate Report at 23-24; History at 432-433. . Griffin v. United States Postal Service, Civ.Action No. 72-487 (M.D.Fla., February 7, 1973) ; Henderson v. Defense Contract Administration Services Region, New York, Civ.Action No. 72-H-1003 (S.D.Texas, December 13, 1973). . Other cases have followed Hackley, holding there is no right to a trial de novo. Chandler v. Johnson, 7 [C.C.H.] E.P.D. ¶ 9139 (C.D.Cal.1973) ; Tomlin v. Air Force Medical Center, 369 F.Supp. 353 (S. D.Ohio 1974). Judge Wollenberg, in Thompson v. United States Dept. of Justice, Bureau of Narcotics, 360 F.Supp. 255 (N.D. Cal.1973), originally held there was a right to a trial de novo; however, upon reconsideration and with the benefit of the recent decisions in Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973), Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973), and Williams v. Mumford, 6 F.E.P.Cases 483, Judge Wollenberg held there was no right to a trial de novo. 7 F.E.P.Cases 347. It is especially pertinent to note that in that case the plaintiff waived his right to an administrative" }, { "docid": "13228060", "title": "", "text": "693, 98 L.Ed. 884 (1954), where the Supreme Court initially recognized that the Fifth Amendment’s due process clause prohibited invidious discrimination by the federal government. . See 118 Cong.Rec. S 2278-2287 (daily ed. Feb. 22, 1972) ; S.Rep.No.415, 92d Cong., 1st Sess. (1971) ; H.R.Rep.No.238, 92d Cong., 1st Sess. (1971). . Cf. Also denying an automatic trial de novo: Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973) ; Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973) ; Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974) ; Requiring a trial de novo: Thompson v. United States Dept. of Justice, BNDD, 360 F.Supp. 255 (N.D.Cal.1973), modified in part, 372 F.Supp. 762 (N.D.Cal.1974) ; Henderson v. Defense Contract Admin. Serv. Reg. N.Y., 370 F.Supp. 180 (S.D.N.Y.1973). . Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971) ; Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (5th Cir. 1971) ; Flowers v. Local 6, Laborers International Union of North America, 431 F.2d 205 (7th Cir. 1970) ; Fekete v. United States Steel Corp., 424 F.2d 331 (3rd Cir. 1970) ; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . See 118 Cong.Rec. S. 2278-2281, 2287 (daily ed. Feb. 22, 1972) ; 119 Cong.Rec. S 1219 (daily ed. Jan. 23, 1973) (remarks of Senator Cranston). See also 1972 U.S.Code Cong. & Admin.News p. 2179 [reprint of H.R.Conf.Rep.No.899, 92d Cong., 2d Sess. (1972)], at 2185, para. 5. . 118 Cong.Rec. S 2281 (daily ed. Feb. 22, 1972). . Id. S 2280." }, { "docid": "18798909", "title": "", "text": "1972 calendar year. The conduct for which plaintiffs allege that they should have received quality step increases and superior accomplishment awards occurred during the period of January, 1972-June, 1972, and several of the acts that plaintiff Pryor alleges constitute harassment occurred after the effective date of the act. Although a portion of these statistics and some harassing actions may be attributable to that period of time just prior to the statute’s enactment, the Court finds that there is sufficient support in the record to indicate that the policies of which the plaintiffs complain were adhered to after the enactment of 42 U.S.C. § 2000e-16. Accordingly, it cannot be said that this cause of action arose before the 1972 amendments to Title VII THE NECESSITY OF A TRIAL DE NOVO As an alternative to dismissal, defendants move for summary judgment in their favor based upon the record of the Equal Employment Opportunity investigation conducted by the Postal Service. Defendants assert that even if the plaintiffs are entitled to maintain their action, the Court should not grant a trial de novo but should limit its consideration to a review of the administrative record that has been filed in this action. The scope of judicial inquiry in an action pursuant to 42 U.S.C. § 2000e-16 is an unsettled question in view of the absence of any definitive legislative mandate and the relatively recent enactment of the statute. Numerous courts have held that the provisions of § 2000e-16 were intended to require only judicial review of the record made by the Civil Service Commission in acting on the complaint. See, e. g., Robinson v. Warner, 370 F.Supp. 828 (D.D.C.1974); Bernardi v. Butz, 7 E.P.D. ¶ 9381 (N.D.Calif.1974); Abrams v. Johnson, 383 F.Supp. 450 (N.D.Ohio 1974); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974); Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C.1974); Thompson v. United States Department of Justice, 372 F.Supp. 762 (N.D.Calif.1974); Chandler v. Johnson, 7 E.P.D. ¶ 9139 (C.D.Calif.1973) ; Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974); Williams v. Mumford, 6 E.P.D. ¶ 8785 (D.D.C.1973); Cates v. Johnson, 377" }, { "docid": "18798910", "title": "", "text": "a trial de novo but should limit its consideration to a review of the administrative record that has been filed in this action. The scope of judicial inquiry in an action pursuant to 42 U.S.C. § 2000e-16 is an unsettled question in view of the absence of any definitive legislative mandate and the relatively recent enactment of the statute. Numerous courts have held that the provisions of § 2000e-16 were intended to require only judicial review of the record made by the Civil Service Commission in acting on the complaint. See, e. g., Robinson v. Warner, 370 F.Supp. 828 (D.D.C.1974); Bernardi v. Butz, 7 E.P.D. ¶ 9381 (N.D.Calif.1974); Abrams v. Johnson, 383 F.Supp. 450 (N.D.Ohio 1974); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974); Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C.1974); Thompson v. United States Department of Justice, 372 F.Supp. 762 (N.D.Calif.1974); Chandler v. Johnson, 7 E.P.D. ¶ 9139 (C.D.Calif.1973) ; Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974); Williams v. Mumford, 6 E.P.D. ¶ 8785 (D.D.C.1973); Cates v. Johnson, 377 F.Supp. 1145 (W.D.Pa.1974) ; Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). This view is supported by the remarks of two senators during debates on the 1972 amendment as well as by the logic that a trial de novo would result in unnecessary delays in enforcement that the 1972 amendments sought to eliminate. See, e. g., Hackley v. Johnson, supra. Furthermore, it is argued that unnecessary duplication of efforts will result if plaintiffs are permitted to re-develop evidence that was presented in an adversary hearing before the Civil Service Commission. See Abrams v. Johnson, supra. Other courts have held, however, that the amendment requires a full trial de novo, paralleling the remedies accorded to the employees of private persons. See Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y.1973); Griffin v. United States Postal Service, 385 F.Supp. 274 (M.D.Fla.1973); Jackson v. United States Postal Service, 379 F.Supp. 589 (S.D.Tex.1973). As courts and commentators have observed, the legislative history" }, { "docid": "10653536", "title": "", "text": "preponderance standard was actually ap plied in Hackley and because it is the normal burden of persuasion in civil litigation, this Court will require that the absence of discrimination be established by the preponderance of evidence in the administrative record. . Plaintiff is white and Christian. . Remarks of a similar tenor were made by Senator Harrison Williams, Chairman of the Senate Committee on Labor and Public Welfare and floor manager of the Committee Bill. 118 Cong.Rec.S. 2230 (daily ed. February 22, 1972) ; Senate Committee on Labor and Public Welfare Compilation, Legislative History of the Equal Employment Act of 1972, 92d Cong., 2d Sess. (1972), at 1727. But see, Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974). . 118 Cong.Rec.S. 2280-81 (daily ed. February 22, 1972) (remarks of Senator Williams) . . See Pointer v. Sampson, 62 F.R.D. 689. Furthermore, Civil Service Commission regulations provide significant procedural rights for aggrieved employees. Id., at 692. . Evans v. Johnson, Civil No. 73-2520-MML (C.D.Cal. April 26, 1974) ; Pointer v. Sampson, supra; Thompson v. United States Department of Justice, 372 F.Supp. 762 (N.D.Cal.1974) ; Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974) ; Chandler v. Johnson, 7 EPD ¶ 9139 (C.D.Cal. December 31, 1973) ; Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973) ; Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973) ; Williams v. Mumford, 6 EPD ¶ 8905 (D.D.C. August 20, 1973). [The citation EPD refers to CCH Employment Practices Decisions]. . Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y. 1973) ; Jackson v. United States Civil Service Commission, 7 EPD ¶ 9134 (S.D.Tex. December 13, 1973) ; Griffin v. United States Postal Service, 7 EPD ¶ 9133 (M.D.Fla. February 7, 1973). . Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 G.W.L. Rev. 824, 857 (1972). . In the present case, the motion was originally filed on December 18, 1973, and following the appointment of counsel for the plaintiff and the filing of an amended complaint, was renewed on May 10,1974. . See generally, Sape &" }, { "docid": "1737568", "title": "", "text": "court after exhaustion of all available administrative remedies. Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973) (Gesell, J.); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C., 1974) (Gasch, J.). See also Thompson v. Department of Justice, 372 F.Supp. 762 (N.D.Cal.1974) [reversing prior decision in 360 F.Supp. 255]; Chandler v. Johnson, 7 (CCH) EPD ¶ 9139 (C.D.Cal.1973); Tomlin v. Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974); Gautier v. Weinberger, 6 (CCH) EPD ¶ 9001 (D.D.C.1973) (Gasch, J.); Williams v. Mumford, 6 FEP Cases 483 (D.D.C.1973) (Jones, J.). Contra, Henderson v. Defense Contract Administration Services Region New York, 370 F.Supp. 180 (S.D.N.Y.1973); Jackson v. U. S. Civil Service Commission, C.A. 72-H-1003 (S.D.Tex., filed Dec. 13, 1973); Griffin v. U. S. Postal Service, No. 72-487-Civ-J-T (M.D.Fla., filed Feb. 7, 1973). The review of the administrative record, after exhaustion of administrative remedies, does not contemplate a trial de novo. This conclusion is based upon the language of the 1972 Act, the legislative history and the reasoning of Hackley, Handy, Pointer and Thompson. There is ambiguous language in the legislative history which lends support to the argument which persuaded the Court to enter its Order of October 26, 1972, to the effect that employees of the Federal Government are to be treated in all respects the same as employees in the private sector, including a statutory right to á trial de novo. Such an argument, however, does, not withstand close scrutiny. The fact is that federal employees and employees in the private sector are treated differently by Congress under Title VII. In the case of the private employee, Congress designated the Equal Employment Opportunity Commission (EEOC) to settle his complaint, but in the ease of the federal employee Congress chose another route — i. e., it designated the Civil Service Commission (CSC) to consider the complaint. Where the voluntary informal efforts within the EEOC were unsuccessful in the private sector Congress gave the private employee immediate access to the Court and a trial de novo; but where the federal employee felt aggrieved, Congress designated CSC to mediate the" }, { "docid": "10653537", "title": "", "text": "of Justice, 372 F.Supp. 762 (N.D.Cal.1974) ; Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974) ; Chandler v. Johnson, 7 EPD ¶ 9139 (C.D.Cal. December 31, 1973) ; Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973) ; Johnson v. United States Postal Service, 364 F.Supp. 37 (N.D.Fla.1973) ; Williams v. Mumford, 6 EPD ¶ 8905 (D.D.C. August 20, 1973). [The citation EPD refers to CCH Employment Practices Decisions]. . Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y. 1973) ; Jackson v. United States Civil Service Commission, 7 EPD ¶ 9134 (S.D.Tex. December 13, 1973) ; Griffin v. United States Postal Service, 7 EPD ¶ 9133 (M.D.Fla. February 7, 1973). . Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 G.W.L. Rev. 824, 857 (1972). . In the present case, the motion was originally filed on December 18, 1973, and following the appointment of counsel for the plaintiff and the filing of an amended complaint, was renewed on May 10,1974. . See generally, Sape & Hart, supra, at 853-854. . “Congress was not only concerned with the inherent conflict of interest in agency determinations of discrimination against its own employees, but also was concerned that there was little, if any, statutory basis for agency remedies for federal employment discrimination and no opportunity for review of those determinations or independent findings by the federal courts.” Id., at 854 [footnotes omitted]. . 5 U.S.C. § 706 provides: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed ; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity ; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D)" }, { "docid": "4138022", "title": "", "text": "sufficient: Napper v. Schnipke, 393 F.Supp. 379 (E.D.Mich.1975); Wright v. National Archives and Records Service, 388 F.Supp. 1205 (D.Md.1975); Russell v. Johnson, 387 F.Supp. 931 (W.D.Pa.1975); Abrams v. Johnson, 383 F.Supp. 450 (N.D. Ohio 1974); Spencer v. Schlesinger, 374 F.Supp. 840 (D.D.C.1974); Cates v. Johnson, 377 F.Supp. 1145 (W.D.Pa.1974); Baca v. Butz, 376 F.Supp. 1005 (D.N.Mex.1974); Robinson v. Warner, 370 F.Supp. 828 (D.C.R.1.1974); Bernardi v. Butz, 7 E.P.D. ¶ 9381 (N.D.Calif.1974); Pointer v. Sampson, 62 F.R.D. 689 (D.D.C.1974); Chandler v. Johnson, 7 E.P.D. ¶ 9139 (C.D.Calif.1973); Tomlin v. United States Air Force Medical Center, 369 F.Supp. 353 (S.D.Ohio 1974): Williams v. Mumford, 6 E.P.D. ¶ 8785 (D.D.C.1973); Handy v. Gayler, 364 F.Supp. 676 (D.Md.1973); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C.1973). The following district courts have held that the 1972 amendments require a full trial de novo, paralleling the remedies accorded to the employees of private persons: Revis v. Laird, 391 F.Supp. 1133 (E.D.Calif.1975); Hunt v. Schlesinger, 389 F.Supp. 725 (W.D. Tenn.1974); Griffin v. United States Postal Service, 385 F.Supp. 274 (M.D.Fla.1973); Henderson v. Defense Contract Administration Services, 370 F.Supp. 180 (S.D.N.Y. 1973); Jackson v. United States Postal Service, 379 F.Supp. 589 (S.D.Tex.1973)." } ]

[ { "docid": "22073311", "title": "", "text": "1969 when the revelation of the existence of the Burke and Ernst & Ernst reports terminated the relationship. . In contrast, Ernst & Ernst did not owe a common law duty to the plaintiffs in Hochfelder. 425 U.S. at 192 n. 9, 96 S.Ct. 1375. . Cf. TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 450, 96 S.Ct. 2126, 2133, 48 L.Ed.2d 757: “Only if the established omissions are ‘so obviously important to an investor that reasonable minds cannot differ on the question of materiality’ is the ultimate issue of materiality appropriately resolved ‘as a matter of law’ by summary judgment.” . Rule 10b-5 actions have proved to be an idiosyncratic element of the law since in these cases the difficult problems presented have been in the formulation of the governing principles of law rather than the more common legal problem of application of settled principles of law to particular facts. Haimoff, supra, at 147. Indeed Hochfelder itself left open, in addition to the reckless behavior question, whether aiding and abetting was a proper Rule 10b-5 theory, and if so what its elements were, as well as whether scienter was required in a Rule 10b-5 injunctive proceeding brought by the SEC. 425 U.S. at 191 n. 7 and 194 n. 12, 96 S.Ct. 1375. Therefore, we will only reach the reckless nondisclosure question in this case since the other two theories of liability discussed below — aiding and abetting and control person— would require us to face the difficult task of defining the elements of these theories after Hochfelder. We leave this task to another day. . While three Circuits held that negligence could support Rule 10b-5 actions before Hochfelder, there has not been any inter-Circuit controversy that scienter short of specific intent to defraud is sufficient to support liability. McLean v. Alexander, 420 F.Supp. 1057, 1081 n. 123 (D.Del.1976). . After setting forth the legislative history of Section 10(b) which indicated that Congress intended a good faith defense to 10(b) liability, the Court in Hochfelder stated: “there is no indication that Congress intended anyone to be made liable" } ]

[ { "docid": "14983635", "title": "", "text": "By reason of the foregoing, the outside directors, together with Emersons, Radnay and Levi, singly and in concert, directly and indirectly by the use of the mails and other means or instrumentalities of interstate commerce, have violated, and/or aided and abetted in violations of Section 10(b) of the Act and Rule 10b-5 promulgated thereunder, in that they (a) employed devices, schemes and artifices to defraud; (b) made untrue statements of material facts and omitted to state material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; and (c) engaged in acts, practices and a course of business which operated as a fraud or deceit upon plaintiffs and other members of the class. “114. By reason of the foregoing, plaintiffs and members of the class whom they represent have been damaged.” II. The outside directors contend that, accepting arguendo all of plaintiffs’ factual allegations as true, the complaint fails as a matter of law to state a claim against them under federal securities law. Resolution of the question depends upon the effect of Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), and Second Circuit authority both prior and subsequent to that notable case. Hochfelder is significant both for what it decided and what it declined to decide. While the case involved an accountant’s asserted liability under § 10(b) and Rule 10(b)-5 to the customers of a brokerage firm the accountant had audited, the principles declared are equally applicable here. Hochfelder held that negligent misrepresentations were not sufficient to impose liability under the Rule; the plaintiff must allege and prove “scienter,” defined by the Court as “intent to deceive, manipulate, or defraud.” 425 U.S. at 193, 96 S.Ct. at 1381. Hochfelder left open the question “whether civil liability for aiding and abetting is appropriate under the section and the Rule,” and “the elements necessary to establish such a cause of action,” 425 U.S. at 192 n. 7, 96 S.Ct. at 1380 n. 7, as well as the question “whether, in some circumstances, reckless" }, { "docid": "22342875", "title": "", "text": "must be, nothing remains but an unfocused allegation that Stott lulled Rolf into acquiescence in Yamada’s investment of his account in unsuitable securities. To hold that he thereby aided and abetted a Rule 10b-5 “fraud” is to confuse the common law duties of fiduciaries or accountants, see, e. g., Ultramares Corp. v. Touche, 255 N.Y. 170, 190, 174 N.E. 441, 449 (1931), with the limited prohibitions of § 10(b) and Rule 10b-5 against the use of any “manipulative or deceptive device or contrivance” in the purchase or sale of securities. Even assuming arguendo that the investment of a customer’s funds in unsuitable securities could on occasion rise to the level of Rule 10b-5 fraud, the majority errs in concluding that Stott’s conduct, principally his assurances regarding Yamada’s competency as investment counsel, coupled with Stott’s personal belief that some of the investments were “junk,” establishes recklessness equivalent to an intentional and deliberate participation in or aiding and abetting of such “fraud.” In my view this determination violates fundamental principles established by the Supreme Court in Ernst & Ernst v. Hochfelder, supra, and stems from an erroneous concept of “recklessness” or “reckless disregard” of material facts. In Hochfelder the Court reversed a decision of the Seventh Circuit which had held “that one who breaches a duty of inquiry and disclosure owed another is liable in damages for aiding and abetting a third party’s violation of Rule 10b-5 if the fraud would have been discovered or prevented but for the breach. 503 F.2d 1100 (1974).” 425 U.S. at 191, 96 S.Ct. at 1380 (emphasis added). The Supreme Court held that proof of scienter, i. e., an “intent to deceive, manipulate or defraud,” was essential and that this element was not satisfied by proof of negligence or breach of a duty to inquire. It left open the “question whether, in some circumstances, reckless behavior” might be treated as the equivalent of scienter, 425 U.S. at 194 n. 12, 96 S.Ct. at 1381. While Hochfelder did not clarify entirely the meaning of scienter, it did make clear that the failure of a fiduciary or accountant" }, { "docid": "14983636", "title": "", "text": "Resolution of the question depends upon the effect of Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), and Second Circuit authority both prior and subsequent to that notable case. Hochfelder is significant both for what it decided and what it declined to decide. While the case involved an accountant’s asserted liability under § 10(b) and Rule 10(b)-5 to the customers of a brokerage firm the accountant had audited, the principles declared are equally applicable here. Hochfelder held that negligent misrepresentations were not sufficient to impose liability under the Rule; the plaintiff must allege and prove “scienter,” defined by the Court as “intent to deceive, manipulate, or defraud.” 425 U.S. at 193, 96 S.Ct. at 1381. Hochfelder left open the question “whether civil liability for aiding and abetting is appropriate under the section and the Rule,” and “the elements necessary to establish such a cause of action,” 425 U.S. at 192 n. 7, 96 S.Ct. at 1380 n. 7, as well as the question “whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 194 n. 12, 96 S.Ct. at 1381 n. 12. The present plaintiffs recognize that, on the authority of Hochfelder and Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973), “mere negligence is insufficient” to sustain a § 10(b) violation. (Brief at p. 4). They contend, however, that under those Second Circuit cases which address the questions left undecided by the Supreme Court in Hochfelder, and thus far still undetermined by that tribunal, their complaint alleges the requisite level of scienter to sustain the cause of action. We turn, then, to the Second Circuit authority. In Shemtob v. Shearson, Hammill & Co., 448 F.2d 442 (2d Cir. 1971), which antedated Hochfelder by five years, the Second Circuit dismissed plaintiffs’ complaint against the brokerage firm with which they had an account. Judge Mansfield wrote for the Court: “Thus plaintiffs’ claim is nothing more than a garden-variety customer’s suit against a broker for breach of contract, which cannot be bootstrapped into an" }, { "docid": "18364008", "title": "", "text": "May 13, 1971. However, during the period January 13-May 13,1971, Yamada purchased for the Competitive portfolio large amounts of virtually worthless securities. The losses on these purchases constitute a substantial portion of the damage claim made by Competitive id'the present action. VI. This brings us to a discussion of the legal standards applicable to this case and the conclusions of law which must ultimately be made. The rule in damage cases under Section 10(b) and Rule 10b-5 is that there is no liability in the absence of proof of “scienter” — i. e., intent to deceive, manipulate, or defraud. Negligent conduct is not grounds for liability. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 214, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In Hochfelder, the Seventh Circuit had held that there was liability under the statute and rule for negligent nonfeasance, and that such negligence could constitute aiding and abetting in a third party’s violation of the statute and rule, which would subject the aider and abettor to liability for damages. 503 F.2d 1100 (1974). The Supreme Court held that negligent nonfeasance was insufficient to create liability, but declined to consider whether there was civil liability for aiding and abetting under the statute and rule, or what would be the necessary elements to establish such a cause of action. 425 U.S. at 191-92, n.7, 96 S.Ct. 1375. The Second Circuit has held that there is liability under the statute and rule for aiding and abetting a securities fraud. Hirsch v. du Pont, 553 F.2d 750 (2d Cir. 1977). This Circuit has held that reckless misconduct may constitute aiding and abetting sufficient to impose liability, where the defendant has a fiduciary duty to the victim of the fraud. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). However, this Circuit has declined to hold a defendant liable as an aider and abettor on a theory of reckless failure to discover a fraud, where the defendant had no fiduciary relationship to the plaintiff. Edwards & Hanly" }, { "docid": "22018981", "title": "", "text": "invoking such a rule, however, we would not go so far as to charge a party with aiding and abetting who somehow unwittingly facilitated the wrongful acts of another. Rather, to invoke such a rule investors must show that the party charged with aiding and abetting had knowledge of or, but for a breach of duty of inquiry, should have had knowledge of the fraud, and that possessing such knowledge the party failed to act due to an improper motive or breach of a duty of disclosure. Hochfelder v. Midwest Stock Exchange, 503 F.2d 364 (7th Cir.), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42 L.Ed.2d 114 (1974). The principle set forth above was applied by the Seventh Circuit in the related case of Hochfelder v. Ernst & Ernst, 503 F.2d 1100 (7th Cir. 1974), rev’d, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). The court in that case found the defendant, Ernst & Ernst, liable under the securities law for negligently conducting an audit. It established the following elements in that case: (1) that the defendant had a duty of inquiry; (2) that plaintiff was a beneficiary of that duty of inquiry; (3) that defendant breached the duty of inquiry; (4) concomitant with the breach of duty of inquiry the defendant breached a duty of disclosure; and (5) there is a causal connection between the breach of duty of inquiry and disclosure and the facilitation of the underlying fraud . The court found that a statutory duty of inquiry and a concomitant duty of disclosure was breach by the defendant through negligence. The Supreme Court reversed. In Hochfelder v. Ernst & Ernst, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), the Supreme Court held that negligence could not be the basis of a violation of § 10(b) and Rule 10b-5. Scienter is required. In formulating its opinion, the Court specifically declined to reach the questions of “whether civil liability for aiding and abetting is appropriate under the section and the rule nor the elements necessary to establish such a cause of action.” Id. at" }, { "docid": "23457663", "title": "", "text": "have influenced the outcome of this litigation, we know of no judicial authority relieving a plaintiff of the burden of going forward or of persuasion on each element of an implied cause of action under § 10(b) — including scienter. We therefore disapprove any suggestion in the lower court’s opinion that the defendant must affirmatively show the absence of intent. The issue, then, is whether the plaintiff has made an affirmative showing that Schiavi acted with the scienter required to sustain a claim under § 10(b). This in turn requires an inquiry into the governing standard of liability, and the case on which both sides rely, Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In Hochfelder the Supreme Court, resolving a dispute among the circuits, concluded that an accounting firm could not be held liable under § 10(b) for conduct which the plaintiff alleged to be “inexcusable negligence.” 425 U.S. at 190 n.5, 96 S.Ct. at n.5. Scienter is a necessary element of a § 10(b) cause of action. But while the Court closed the door on negligence actions, it included in a footnote a statement which is rapidly becoming as famous as the main text: [T]he term “scienter” refers to a mental state embracing intent to deceive, manipulate, or defraud. In certain areas of the law recklessness is considered to be a form of intentional conduct for purposes of imposing liability for some act. We need not address here the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5. 425 U.S. at 194 n.12, 96 S.Ct. at 1381, n.12. Since the Hochfelder decision this court and other Courts of Appeals which have considered the issue reserved in Hochfelder have unanimously agreed that reckless conduct is actionable under § 10(b). In Coleco Industries, Inc. v. Berman, 567 F.2d 569 (3d Cir. 1977) (per curiam), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), we approved Judge Huyett’s statement that the scienter element in a § 10(b) case required “ ‘a conscious" }, { "docid": "22342849", "title": "", "text": "32 Bus.Law 147, 162 (1976). Third, it is consistent with, if not demanded by, precedent in this circuit to hold that reckless conduct satisfies the scienter requirement. See Lanza v. Drexel & Co., 479 F.2d 1277, 1306 (2d Cir. 1973) (en banc); Shemtob v. Shearson Hammill & Co., 448 F.2d 442, 445 (2d Cir. 1971); Bucklo, The Supreme Court Attempts to Define Scienter Under Rule 10b-5: Ernst & Ernst v. Hochfelder, 29 Stan.L.Rev. 213, 214 (1977). Lanza v. Drexel, supra, of course required scienter as an element of a 10b-5 cause of action prior to the Supreme Court’s decision in Hochfelder. The Lanza test was stated in terms of “willful or reckless disregard for the truth,” id. at 1306 (emphasis added), thereby recognizing that either intentional or reckless behavior is the predicate mental state for 10b-5 liability. The Hochfelder Court noted that a number of courts of appeals “have held that some type of scienter — i. e., intent to defraud, reckless disregard for the truth, or knowing use of some practice to defraud — is necessary in such an action” and then cited inter alia our decision in Lanza, 425 U.S. at 194 n. 12, 96 S.Ct. at 1381. Thus, on balance, we consider that Hochfelder left intact our rule that recklessness is a form of scienter in appropriate circumstances. A final basis for applying a recklessness standard in certain instances rests perhaps on the practical problem of proof in private enforcement under the securities laws. Proof of a defendant’s knowledge or intent will often be inferential, see Ruder, Multiple Defendants in Securities Law Fraud Cases : Aiding and Abetting, Conspiracy in Pari Delicto, Indemnification, and Contribution, 120 U.Pa.L.Rev. 597, 635 (1972), and cases thus of necessity cast in terms of recklessness. To require in all types of 10b-5 cases that a factfinder must find a specific intent to deceive or defraud would for all intents and purposes disembowel the private cause of action under § 10(b). 2. Other elements of aiding and abetting liability. Given, then, that we find aider and abettor liability appropriate under § 10(b) and" }, { "docid": "22993165", "title": "", "text": "805 F.2d 342, 344-45 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987); Cronin v. Midwestern Okla. Dev. Auth., 619 F.2d 856, 860 (10th Cir.1980); McCown v. Heidler, 527 F.2d 204, 207 (10th Cir.1975); Zabriskie v. Lewis, 507 F.2d 546, 553 (10th Cir.1974); Kerbs v. Fall River Indus., Inc., 502 F.2d 731, 740 (10th Cir.1974). It was likewise clear in 1988 that one who aided and abetted a fraudulent scheme shared equal liability with the primarily violators. McCown, 527 F.2d at 207. Thus it would have been futile for appellant to object below either to the aiding and abetting instruction or the general verdict form. Like the court in Key, we believe that in this case the interests of justice and the policies underlying Rule 51 reject forcing an appellant to object to a jury instruction where, based on the state of the then applicable law, her objection would have been futile. C. Scienter Appellant argues that remand is unnecessary, and that we should reverse the judgment because Cross only acted recklessly with respect to the Home-Stake fraud, and recklessness does not satisfy the scienter requirement for liability in a civil action under § 10(b). The district court correctly , rejected this argument. A private cause of action for damages under § 10(b) and Rule 10b-5 will not lie in the absence of proof of “scienter,” defined as “the intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668 (1976) (emphasis added). In Ernst & Ernst, the Court expressly declined to address “the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 193-94, n. 12, 96 S.Ct. at 1381, n. 12. The Supreme Court has still not spoken on this question. In Hackbart v. Holmes, 675 F.2d 1114, 1117 (10th Cir.1982), this court held that “recklessness” satisfies the scienter requirement for a primary violation of § 10(b). We defined “recklessness” as “conduct that is an extreme departure from the standards of ordinary" }, { "docid": "22018984", "title": "", "text": "actions have proved to be an idiosyncratic element of the law since in these cases the difficult problems presented have been in the formulation of the governing principles of law rather than the more common legal problem of application of settled principles of law to particular facts. Haimoff, supra, at 147. Indeed Hochfelder itself left open, in addition to the reckless behavior question, whether aiding and abetting was a proper Rule 10b-5 theory, and if so what its elements were, as well as whether scienter was required in a Rule 10b-5 injunctive proceeding brought by the SEC. 425 U.S. at 191 n. 7 and 194 n. 12, 96 S.Ct. 1375. Therefore, we will only reach the reckless nondisclosure question in this case since the other two theories of liability discussed below — aiding and abetting and control person — would require us to face the difficult task of defining the elements of these theories after Hochfelder. We leave this task to another day. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, No. 73-1316, 7th Cir., 1977. Apparently the day has arrived for this Court. Based upon the cases enumerated and discussed above, the Court is of the opinion that in order to establish liability under the securities laws, the plaintiff must allege and prove the following: (1) That the person charged as an aider and abettor had knowledge of the fraud or acted so recklessly that knowledge of the fraud may be imputed to him and, (2) either (a) have actively participated in the transaction in an effort to assist the violator in the completion of the transaction, or (b) have failed to disclose the fraud to the plaintiff in breach of a duty to disclose owing to the plaintiff. With these principles in mind, the Court must review the allegations of the complaint to determine if a cause of action for aiding and abetting the violations are stated. As to the individual defendants the complaint states: 21. Such individual defendants, as officers or directors of defendant Bank-shares, knew or should have known of said material facts alleged in" }, { "docid": "23471672", "title": "", "text": "of all reasonable inferences. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). Alleged Aiding and Abetting of Violations of § 10(b) and Rule 10b-5. The courts of appeals have formulated a three-part test that must be met before aiding and abetting liability is imposed. If proof of any part is lacking, there can be no liability. The three prerequisites are: (1) the existence of a securities law violation by the primary party (as opposed to the aiding and abetting party); (2) “knowledge” of the violation on the part of the aider and abettor; and (3) “substantial assistance” by the aider and abettor in the achievement of the primary violation. See IIT, An International Investment Trust v. Cornfeld, 619 F.2d 909, 922 (2d Cir. 1980); Monsen v. Consolidated Dressed Beef Co., 579 F.2d 793, 799 (3d Cir.) cert. denied, 439 U.S. 930, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978); Woodward v. Metro Bank of Dallas, 522 F.2d 84, 94-97 (5th Cir. 1975). As was said in Cornfeld, supra, 619 F.2d at 922, the three-part test has become commonplace, but the exact content of the three parts “is still being delineated by the courts.” Nor should the three parts “be considered in isolation from one another.” Ibid. (1) The Primary Violation. There is no dispute that the first element has been satisfied. The court in Jenson found that CFC violated the federal securities laws, and that finding is not in controversy on this appeal. (2) Knowledge of the Violation. The Supreme Court in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668 (1976), held that a finding of scienter — intent to deceive, manipulate, or defraud — is a prerequisite to § 10(b) liability. Hochfelder clearly eliminates negligence as a possible basis for a finding of liability, but leaves open the question whether recklessness could be sufficient under certain circumstances. Id. at 193-94 n.12, 96 S.Ct. at 1381 n.12. Since Hochfelder, the courts of appeals have generally concluded that recklessness, in some form, can satisfy the scienter requirement." }, { "docid": "3371166", "title": "", "text": "PER CURIAM: Magna Investment Corporation brought suit against Price Waterhouse, an accounting firm. The suit alleges, among other things, violations of the Securities Exchange Act of 1934, §§ 10(b) and 18(a), and Rule 10b-5, in connection with the actions of Price Waterhouse in performing an audit of, and in issuing an opinion on the financial state of, Electronic Specialty Products, Inc. The district court granted Price Waterhouse summary judgment on the section 10(b) and Rule 10b-5 claims based on its reading of the Supreme Court’s decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In Hochfelder, the Supreme Court held that a private cause of action cannot exist under section 10(b) and Rule 10b-5 without the element of scienter, 425 U.S. at 193, 96 S.Ct. at 1381, which the Court defined as “a mental state embracing intent to deceive, manipulate, or defraud,” 425 U.S. at 193 n. 12, 96 S.Ct. at 1381 n. 12. The district court in this case concluded that, because Magna failed to show that Price Water-house “intentionally sought to deceive, manipulate or defraud through the issuance of the 1985 and 1986 F/S,” Price Waterhouse did not possess the scienter necessary to establish liability under section 10(b) or Rule 10b-5. As the district court noted, the Supreme Court in Hochfelder expressly declined to address the question “whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 193 n. 12, 96 S.Ct. at 1381 n. 12. But, we have addressed the question and answered it in the affirmative: “The rule in this circuit is that ‘severe recklessness’ satisfies the scienter requirement.” Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1010 (11th Cir.1985); see also Kennedy v. Tallant, 710 F.2d 711, 720 (11th Cir.1983). Because the district court never considered whether Magna alleged recklessness sufficient to satisfy the scienter requirement, we vacate the district court’s disposition of Magna’s section 10(b) and Rule 10b-5 claims and remand. The district court also granted Price Wa-terhouse summary judgment on the section 18 claims," }, { "docid": "22089285", "title": "", "text": "2) of a material fact, 3) made with scienter, 4) on which plaintiff relied, 5) that proximately caused his injury. See Ross v. Bank South, N.A., 885 F.2d 723, 728 (11th Cir.1989)(en banc). In the instant appeal, we address the scienter requirement after the passage of the Reform Act to sustain a private claim under § 10(b) and Rule 10b-5 in this Circuit. In Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976), the Supreme Court, in holding that negligence was in sufficient to trigger civil liability under § 10(b) and Rule 10b-5, defined scienter as a “mental state embracing intent to deceive, manipulate, or defraud.” The Court, however, in clearly precluding civil liability for negligence, expressly left open the question of whether scienter included recklessness. The Court stated in footnote 12: In certain areas of the law recklessness is considered to be a form of intentional conduct for purposes of imposing liability for some act. We need not address here the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5. Id. Since the reservation of that question and before the passage of the Reform Act, every circuit to address the issue had held that recklessness can serve as an actionable state of mind under § 10(b) and Rule 10b-5, including our own. See McDonald v. Alan Bush Brokerage Co., 863 F.2d 809, 814 (11th Cir.1989). In particular, our Circuit adheres to the rule that a showing of “severe recklessness” satisfies the scienter requirement. Id. While all the circuits agreed that recklessness could suffice as the requisite scienter under § 10(b) and Rule 10b-5, as of the time of the Reform Act, the circuits were split as to what facts alleging scienter a plaintiff must plead in order to survive a motion to dismiss. Interpreting Fed.R.Civ.P. 9(b), which provides that “[i]n all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity,” but also that “[m]alice, intent, knowledge, and other condition of mind of a" }, { "docid": "22018982", "title": "", "text": "case: (1) that the defendant had a duty of inquiry; (2) that plaintiff was a beneficiary of that duty of inquiry; (3) that defendant breached the duty of inquiry; (4) concomitant with the breach of duty of inquiry the defendant breached a duty of disclosure; and (5) there is a causal connection between the breach of duty of inquiry and disclosure and the facilitation of the underlying fraud . The court found that a statutory duty of inquiry and a concomitant duty of disclosure was breach by the defendant through negligence. The Supreme Court reversed. In Hochfelder v. Ernst & Ernst, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), the Supreme Court held that negligence could not be the basis of a violation of § 10(b) and Rule 10b-5. Scienter is required. In formulating its opinion, the Court specifically declined to reach the questions of “whether civil liability for aiding and abetting is appropriate under the section and the rule nor the elements necessary to establish such a cause of action.” Id. at 191-92 n. 7, 96 S.Ct. at 1380. Nor did the Court establish the required “scienter” specifically stating: “We need not address here the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 194 n. 12, 96 S.Ct. at 1381. The Court of Appeals for this circuit has answered the latter question finding recklessness sufficient. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, Consolidated Nos. 73-1316, 1317, 1318, 2058 and 2059 7th Cir. decided Feb. 23, 1977; Bailey v. Meister Brau, Inc., 535 F.2d 982 (7th Cir. 1976). The theory of aiding and abetting is apparently still viable in this circuit. That portion of the Hochfelder v. Ernst & Ernst decision by the Seventh Circuit finding liability under a theory of aiding and abetting; and setting forth the elements was not disturbed by the Supreme Court. In a footnote to a recent decision, the Circuit Court itself specifically declined to reach these! questions in light of the Supreme Court decision in Hochfelder. Rule 10b-5" }, { "docid": "16057609", "title": "", "text": "and substantial assistance requirement, the court focused on the kinds of assistance an aider and abettor might offer to the primary violator. For a defendant whose only role is to remain silent in the face of securities violations, liability might depend upon a duty owed to the other parties to the transaction. A defendant who is not under any duty to disclose can be found liable as an aider and abettor only if he acts with a high degree of scienter, that is, with a “conscious intent” to aid the fraud. On the other hand, liability could be imposed upon an aider and abettor who is under a duty to disclose if he acts with a lesser degree of scienter. For an aider and abettor who combines silence with affirmative assistance, the degree of knowledge required should depend upon how ordinary the assisting activity is in the involved businesses. Id. at 96-97. If the evidence shows no more than a transaction constituting the daily grist of the mill, we would be loathe to find 10b-5 liability without clear proof of intent to violate the securities laws. Conversely, if the method or transaction is atypical or lacks business justification, it may be possible to infer the knowledge necessary for aiding and abetting liability- Id. at 97. The court reiterated that the assistance must be substantial, a conclusion to be drawn after evaluating all the circumstances. Id. Although Woodward was decided prior to the decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), in which the Supreme Court announced that scienter, “a mental state embracing an intent to deceive, manipulate, or defraud,” 425 U.S. at 193 n. 12, 96 S.Ct. at 1381 n. 12, was a necessary element of proof in a cause of action for damages under section 10(b) and Rule lob-5, the Fifth Circuit required proof of scienter at the time the Woodward court acted. 522 F.2d at 93; see Sargent v. Genesco Inc., 492 F.2d 750, 761 (5th Cir.1974). The Hochfelder court declined to address the issue of whether “reckless” behavior" }, { "docid": "22342844", "title": "", "text": "at 1070 (2d Cir. 1977). IV Liability A. Stott There is no doubt that Yamada perpetrated a gross fraud upon Rolf in violation of § 10(b) and Rule 10b-5. We conclude that Stott, by virtue of assurances of confidence in Yamada and in Yamada’s investment decisions and by virtue of his reckless disregard of whether those assurances were true or false and of substantial evidence that Yamada was improperly and fraudulently managing Rolf’s account, participated in and lent assistance to the fraud upon Dr. Rolf. The reasoning which leads us to this conclusion follows. 1. Reckless disregard of truth or falsity as constituting scienter. The starting point is Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In Hochfelder, the Supreme Court explicitly failed to decide whether § 10(b) and Rule 10b-5 may, in appropriate circumstances, give rise to aiding and abetting liability and, if so, the elements of such a cause of action. Id. at 192 n. 7, 96 S.Ct. 1375. Although the Supreme Court has, therefore, not passed on the issue, our court has adopted the position that § 10(b) and Rule 10b-5 do permit the imposition of aiding and abetting liability. Hirsch v. DuPont, 553 F.2d 750, 759 (2d Cir. 1977); see Brennan v. Midwestern United Life Insurance Co., 417 F.2d 147 (7th Cir. 1969), cert. denied, 397 U.S. 989, 90 S.Ct. 1122, 25 L.Ed.2d 397 (1970); Note, Accountants’ Liabilities for False and Misleading Financial Statements, 67 Colum.L.Rev. 1437, 1448 (1967). Of course, the basic holding of Hochfeider, that scienter is an element of the § 10(b)/Rule 10b-5 cause of action, also establishes the standard for aiding and abetting liability. The question then becomes precisely what level of scienter is required in this type of 10b-5 case and whether the district court’s findings indicate that plaintiff’s proof satisfies that standard. We conclude on one of the questions left open by Hochfelder, 428 U.S. at 194 n. 12, 96 S.Ct. 1375, that at least where, as here, the alleged aider and abettor owes a fiduciary duty to the defrauded party, recklessness satisfies" }, { "docid": "915971", "title": "", "text": "Court held that § 10(b) does not support a private cause of action for aiding and abetting securities fraud. The Court reasoned that since its prior holdings dictated that the statutory language itself governs the scope of conduct prohibited by § 10(b), and since the language of § 10(b) does not specifically prohibit aiding and abetting securities fraud, plaintiffs could not maintain an action based on that theory. In addition, the Court held that even apart from the language itself, the fact that Congress could have, but did not, provide for an aiding and abetting cause of action in the 1934 Act’s express remedies provisions indicated that Congress did not intend to prohibit such conduct, especially not through a judicially implied remedy. Hinting at an alternative possibility, however, the Court did note that an “aider and abettor” might still be hable for primary violations of § 10(b) if its conduct satisfies all of the statute’s elements. Central Bank, - U.S. -, 114 S.Ct. at 1455. B. Central Bank and Scienter At the outset, as BDO implicitly concedes, Central Bank does not expressly hold that recklessness cannot form the basis of primary liability under § 10(b). Indeed, much to the chagrin of many commentators seeking clarity in securities law, see, e.g., Scott A. Crist, Walking on Thin Ice: The Changing Liability of Attorneys in the Securities Arena, 27 J.Marshall L.Rev. 909, 917 (1994), the Court has again refused to address an issue that it reserved over eighteen years ago in Hochfelder, 425 U.S. at 194 n. 12, 96 S.Ct. at 1381 n. 12 (“We need not address here the question of whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.”). Unfortunately, therefore, the Supreme Court in Central Bank does little to crystalize the amorphous status of scienter in § 10(b) civil litigation. See Leslie Fay I, 835 F.Supp. at 172 & n. 1. On the other hand, the Second Circuit has specifically addressed the scienter issue. As Judge Wood recounted in In re Fischbach Corporation Securities Litigation, No. 89 Civ. 5826 (KMW), 1992" }, { "docid": "22018983", "title": "", "text": "191-92 n. 7, 96 S.Ct. at 1380. Nor did the Court establish the required “scienter” specifically stating: “We need not address here the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 194 n. 12, 96 S.Ct. at 1381. The Court of Appeals for this circuit has answered the latter question finding recklessness sufficient. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, Consolidated Nos. 73-1316, 1317, 1318, 2058 and 2059 7th Cir. decided Feb. 23, 1977; Bailey v. Meister Brau, Inc., 535 F.2d 982 (7th Cir. 1976). The theory of aiding and abetting is apparently still viable in this circuit. That portion of the Hochfelder v. Ernst & Ernst decision by the Seventh Circuit finding liability under a theory of aiding and abetting; and setting forth the elements was not disturbed by the Supreme Court. In a footnote to a recent decision, the Circuit Court itself specifically declined to reach these! questions in light of the Supreme Court decision in Hochfelder. Rule 10b-5 actions have proved to be an idiosyncratic element of the law since in these cases the difficult problems presented have been in the formulation of the governing principles of law rather than the more common legal problem of application of settled principles of law to particular facts. Haimoff, supra, at 147. Indeed Hochfelder itself left open, in addition to the reckless behavior question, whether aiding and abetting was a proper Rule 10b-5 theory, and if so what its elements were, as well as whether scienter was required in a Rule 10b-5 injunctive proceeding brought by the SEC. 425 U.S. at 191 n. 7 and 194 n. 12, 96 S.Ct. 1375. Therefore, we will only reach the reckless nondisclosure question in this case since the other two theories of liability discussed below — aiding and abetting and control person — would require us to face the difficult task of defining the elements of these theories after Hochfelder. We leave this task to another day. Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, No. 73-1316, 7th" }, { "docid": "16057610", "title": "", "text": "liability without clear proof of intent to violate the securities laws. Conversely, if the method or transaction is atypical or lacks business justification, it may be possible to infer the knowledge necessary for aiding and abetting liability- Id. at 97. The court reiterated that the assistance must be substantial, a conclusion to be drawn after evaluating all the circumstances. Id. Although Woodward was decided prior to the decision in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), in which the Supreme Court announced that scienter, “a mental state embracing an intent to deceive, manipulate, or defraud,” 425 U.S. at 193 n. 12, 96 S.Ct. at 1381 n. 12, was a necessary element of proof in a cause of action for damages under section 10(b) and Rule lob-5, the Fifth Circuit required proof of scienter at the time the Woodward court acted. 522 F.2d at 93; see Sargent v. Genesco Inc., 492 F.2d 750, 761 (5th Cir.1974). The Hochfelder court declined to address the issue of whether “reckless” behavior is sufficient for civil liability under section 10(b) and Rule 10b-5. 425 U.S. at 193 n. 12, 96 S.Ct. at 1381 n. 12. The rule in this circuit is that “severe recklessness” satisfies the scienter requirement. White v. Sanders, 689 F.2d 1366, 1367 n. 4 (11th Cir.1982); Broad v. Rockwell International Corp., 642 F.2d 929, 961 (5th Cir.) (en banc), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 380 (1981). Severe recklessness is limited to those highly unreasonable omissions or misrepresentations that involve not merely simple or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and that present a danger of misleading buyers or sellers which is either known to the defendant or is so obvious that the defendant must have been aware of it. Broad, 642 F.2d at 961-62. Severe recklessness can satisfy the scienter requirement in an aiding and abetting case, at least where the alleged aider and abettor owes a duty to the defrauded party. Woodward, 522 F.2d at 96-97; see also Rolf v. Blyth," }, { "docid": "22342876", "title": "", "text": "& Ernst v. Hochfelder, supra, and stems from an erroneous concept of “recklessness” or “reckless disregard” of material facts. In Hochfelder the Court reversed a decision of the Seventh Circuit which had held “that one who breaches a duty of inquiry and disclosure owed another is liable in damages for aiding and abetting a third party’s violation of Rule 10b-5 if the fraud would have been discovered or prevented but for the breach. 503 F.2d 1100 (1974).” 425 U.S. at 191, 96 S.Ct. at 1380 (emphasis added). The Supreme Court held that proof of scienter, i. e., an “intent to deceive, manipulate or defraud,” was essential and that this element was not satisfied by proof of negligence or breach of a duty to inquire. It left open the “question whether, in some circumstances, reckless behavior” might be treated as the equivalent of scienter, 425 U.S. at 194 n. 12, 96 S.Ct. at 1381. While Hochfelder did not clarify entirely the meaning of scienter, it did make clear that the failure of a fiduciary or accountant to fulfill a “common-law and statutory duty of inquiry,” 425 U.S. at 192, 96 S.Ct. at 1380, which would reveal fraud on someone else’s part, is not without more the equivalent of scienter as defined by the Court. Since Hochfelder we have reiterated that “ . . . before [a party] can be held liable as an aider and abetter, there must be a showing that [such a party]: (a) knew of the investment adviser-client relationship; (b) had knowledge of the fraud; and (c) acted in concert with the investment adviser. Cf. Ernst & Ernst v. Hochfelder, 425 U.S. 185 [96 S.Ct. 1375, 47 L.Ed.2d 668] (1976).” Abrahamson v. Fleschner, 568 F.2d 862, at 871-872 n. 16 (2d Cir. 1977). See also Hirsch v. du Pont, 553 F.2d 750, 759 (2d Cir. 1977) (“knowing assistance of or participation in a fraudulent scheme gives rise to liability under § 10(b) as an aider and abettor . . . knowledge of the fraud ... is indispensable”); Kerbs v. Fall River Indus., Inc., 502 F.2d 731, 739-40 (10th" }, { "docid": "22993166", "title": "", "text": "acted recklessly with respect to the Home-Stake fraud, and recklessness does not satisfy the scienter requirement for liability in a civil action under § 10(b). The district court correctly , rejected this argument. A private cause of action for damages under § 10(b) and Rule 10b-5 will not lie in the absence of proof of “scienter,” defined as “the intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 1381, 47 L.Ed.2d 668 (1976) (emphasis added). In Ernst & Ernst, the Court expressly declined to address “the question whether, in some circumstances, reckless behavior is sufficient for civil liability under § 10(b) and Rule 10b-5.” Id. at 193-94, n. 12, 96 S.Ct. at 1381, n. 12. The Supreme Court has still not spoken on this question. In Hackbart v. Holmes, 675 F.2d 1114, 1117 (10th Cir.1982), this court held that “recklessness” satisfies the scienter requirement for a primary violation of § 10(b). We defined “recklessness” as “conduct that is an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” Id. at 1118 (quotation and citation omitted). Appellant contends that Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982 (10th Cir.1992), overrules Hackbart sub silentio. Alternatively, she argues that Hackbart is inconsistent with the reading-given Ernst & Ernst by Central Bank of Denver and must now be overruled. Neither proposition is correct. However, some language in Farlow does support appellant’s argument. Farlow involved a claim against an accounting firm for aiding and abetting a securities fraud scheme; the court’s opinion focused primarily on the extent to which the pleading requirements of Fed.R.Civ.P. 9(b) apply to securities fraud claims. According to the court, in order to establish primary liability under § 10(b), a party must allege and prove: facts showing that the conduct complained of occurred “in connection with” the purchase or sale of a security — that the actor made an untrue statement" } ]

[ { "docid": "23018059", "title": "", "text": "prison, those claims “remain viable because a judgment for damages in his favor would alter the defendants’ behavior by forcing them to pay an amount of money they otherwise would not have paid.” Id. Because we read Mr. Wirsching’s complaint as seeking damages for all of the constitutional violations he has alleged, there is a case or controversy regarding all of those alleged violations. B. Failure to Object to the Magistrate Judge’s Recommendation The magistrate judge’s recommendation contained a section stating that the parties had ten days from the date of service to file written objections. The recommendation further stated that “[fjailure to file written objections to the proposed findings and recommendations ... may bar the aggrieved party from appealing the factual findings ... that are accepted or adopted by the District Judge” and that “failure to file written objections concerning legal questions addressed in the recommendation generally operates as a waiver of appellate review of those legal questions.” Rec. doc. 61 attach. (Recommendation of United States Magistrate Judge, filed Aug. 16, 2000). The recommendation included a certificate of mailing indicating that it was sent to the prison address provided by Mr. Wirsching — the same address at which he had received prior pleadings and orders. In Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991), this circuit noted that “we have adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate.” That rule “provides that the failure to make timely objection to the magistrate’s findings or recommendations waives appellate review of both factual and legal questions.” Id. (internal citations omitted). However, “[t]he waiver rule as a procedural bar need not be applied when the interests of justice so dictate.” Id. Our decisions have not defined the “interests, of justice” exception with much specificity. In some instances, we have considered whether the party seeking to invoke the exception himself bore some responsibility for the failure to receive the magistrate’s report and recommendation. See Theede v. United States Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir.1999) (noting, when the appellant" } ]

[ { "docid": "22453886", "title": "", "text": "he filed an amended complaint. By the time the case was ready for a ruling on whether summary judgment was appropriate, the Supreme Court had decided Sandin v. Conner, — U.S.-, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The magistrate judge concluded that Mr. Talley’s due process claims were without merit under Sandin, that the remaining claims were not supported, and that defendants’ motion for summary judgment should be granted. The district court adopted the magistrate judge’s report and recommendation, and dismissed the complaint with prejudice. II As an initial matter, we observe that Mr. Talley did not file written objections to the magistrate judge’s recommendations. This circuit has adopted a firm waiver rule under which a party who fails to make timely objection to the magistrate’s findings and recommendations waives appellate review of both factual and legal questions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). This rule does not apply, however, when the ends of justice dictate otherwise or when the magistrate’s order does not clearly apprise a pro se litigant of the consequences of a failure to object. Id. While the report here does inform Mr. Talley that his failure to file written objections may bar him from appealing the factual findings of the magistrate judge, the report does not state that a failure to object waives appellate review of legal questions as well. The magistrate judge recommended summary judgment be granted on the basis that no factual disputes existed and that defendants were entitled to judgment as a matter of law. Since the report does not inform Mr. Talley that his failure to object would bar review of these legal issues, we conclude that application of our waiver rule is not appropriate in this case. We therefore turn to the merits of the appeal. Ill Mr. Talley contends on appeal that the magistrate judge erred in applying the decision in Sandin retroactively, and that under prior Supreme Court decisions he was denied procedural due process. On the issue of retroactivity, the Supreme Court has held: ‘When this Court applies a rule of federal" }, { "docid": "22140810", "title": "", "text": "Panel considers Mr. Morales-Fernandez’s case annually to determine his suitability for immigration parole. See 8 C.F.R. § 212.12. On February 8, 2002, the Review Panel recommended he be released as soon as possible to a willing family member. The Associate Commissioner adopted the panel’s recommendation and issued a Notice of Releaseability. But the INS was unsuccessful in finding suitable living arrangements for him. Then, on August 23, 2002, Mr. Moralez-Fernandez was convicted by a Bureau of Prisons hearing officer of assault on staff and refusal to obey an order. Due to this prisoner disciplinary conviction, the Associate Commissioner withdrew the Notice of Releaseability. Mr. Moralez-Fernandez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2241, asserting two claims. First, he argued that the Attorney General does not have statutory authority to detain an inadmissible alien indefinitely. Second, he maintained that his indefinite detention violates his Fifth Amendment substantive due process rights. The INS filed a motion to dismiss. The matter was referred to a magistrate judge who issued a report recommending that the district court dismiss Mr. Morales-Fernandez’s § 2241 petition. Neither party objected to the recommendation. The district court adopted the magistrate’s recommendation and this appeal followed. II As a threshold matter, we note that Mr. Morales-Fernandez failed to file written objections to the magistrate judge’s recommendations. This court has adopted a firm waiver rule under which a party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the “interests of justice” require review. Id.; Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004); Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996); see also Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“because the rule is a nonjurisdietional waiver" }, { "docid": "3298264", "title": "", "text": "and that he planned to amend the petition. A copy of this petition was served on respondent. Upon receiving Mr. Davis’s “preliminary” petition, the district court ordered him to file an amended petition by December 26, 2006. The court subsequently granted his motion for an enlargement of time and extended the deadline to February 22, 2007. Mr. Davis failed to file an amended petition by that date, and on March 1 the magistrate judge entered an order directing him to show cause by March 21 for this failure. Again, Mr. Davis did not respond to the court’s orders. The district court entered a second show cause order on May 31, setting a new deadline of June 11 and warning that dismissal could result if Mr. Davis failed to comply with the show cause order. On June 11, 2007, counsel for Mr. Davis responded to the second show cause order, explaining that he had failed to file an amended petition because he had experienced numerous computer problems and had undergone a family crisis. He requested a further extension of the filing deadline, or, alternately, that the court “instead consider each of the claims contained in the preliminary petition on the merits.” ApltApp. at 20. The court granted the extension and ordered Mr. Davis to file an amended petition by July 10. Counsel for Mr. Davis again missed the deadline. On July 16, the district court dismissed Mr. Davis’s petition sua sponte under Rule 41(b) due to his failure to comply with court orders. Respondent never made an appearance in the case. II. A district court may dismiss an action sua sponte “[i]f the plaintiff fails to prosecute or to comply with these [procedural] rules or a court order.” Fed. R.Civ.P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir.2003). Dismissals pursuant to Rule 41(b) may be made with or without prejudice. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161-62 (10th Cir.2007). The district court did not specify whether it intended to dismiss Mr. Davis’s case with or without prejudice, so we “rely on background principles under" }, { "docid": "4054954", "title": "", "text": "101 F.3d 631, 632 (10th Cir.1996). We have adopted a firm-waiver rule providing that the “failure to make timely objection[s]” to a magistrate judge’s recommendations “waives appellate review of both factual and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.2010) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004)). “There are two exceptions when the firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.’ ” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005) (internal quotation marks omitted)). Here, neither exception applies because Mr. Allman has counsel and he does not justify how the interests of justice compel review. Because Mr. Allman has not adequately presented these arguments to the district court, they are waived. Additionally, Mr. Allman failed to argue before the district court that the ALJ’s findings under Listing 12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1, and his mental-RFC findings were unsupported by substantial evidence. See Appellant’s Opening Br. at 10-18 (nesting this argument within his first argument that the ALJ did not properly consider his headaches). If a claimant fails to present an issue to the district court, the issue is forfeited unless compelling reasons dictate that the forfeiture be excused. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994) (“Absent compelling reasons, we do not consider arguments that were not presented to the district court.”). Here, Mr. All-man offers no justification at all, much less any compelling reason, for his failure to preserve this issue. Accordingly, Mr. All-man forfeits this argument. II Regarding the issues he did raise in the district court, Mr. Allman argues that the ALJ erred' in not finding that his headaches were a severe impairment at step two and that the ALJ failed to sufficiently consider his headaches in combination with his other severe impairments at step four. He also contends that the ALJ erred in" }, { "docid": "22180235", "title": "", "text": "treatments by JCCC physicians followed for the next year. Though he received treatment, Mr. Duffield alleges that he has not been treated in a “humane manner,” Complaint at 2, because the medical staff has failed to provide him the treatment and medication necessary to relieve the pain from his hip and lower back, has not sent him to an outside specialist who might prescribe a more effective course of treatment, and has provided such cursory treatment of his ear as to amount to “deliberate indifference.” Id. Mr. Duffield sued Dr. Michael Jackson, the medical director of the JCCC; Dr. Jeff Troutt, a JCCC doctor who attended to Mr. Duffield; Nurse Katryna Freeh, an administrator who facilitated Mr. Duf-field’s medical requests; Roy Arian, a Physician’s Assistant who attended to Mr. Duffield; and John Doe, the physicians and staff at the Oklahoma University Medical Center, where Mr. Duffield had a consultation with an ear specialist. The district court referred Mr. Duf-field’s claim to a magistrate judge for preliminary review pursuant to 28 U.S.C. § 636(b)(1)(B). On October 30, 2007, the magistrate judge issued a Report and Recommendation in which he recommended that the defendants’ motions for dismissal and motions for summary judgment be granted. Specifically, he recommended that the claims against Dr. Jackson, Nurse Freeh, and John Doe be dismissed because Mr. Duffield had failed to allege that any of them was personally involved in the alleged deliberate indifference, and he recommended summary judgment for Mr. Arian and Dr. Troutt because Mr. Duffield had failed to produce evidence showing a genuine issue of material fact that either men had exhibited deliberate indifference. He also denied without prejudice Mr. Duf-field’s request for limited discovery for service and for appointment of counsel. The magistrate judge’s Report and Recommendation ended with an explicit message to Mr. Duffield that advised him of his right to object to the report and the consequences of failing to do so: The Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 19, 2007, in accordance with" }, { "docid": "4054953", "title": "", "text": "Mr. Allman’s objections. The district court concluded that Mr. Allman had failed to demonstrate that his headaches qualified as a severe impairment and that the ALJ had provided sufficient bases for not assigning more weight to Dr. Sun’s opinion. On appeal, Mr. All-man challenges, among other things, the district court’s findings regarding the ALJ’s determinations at steps two and four. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. I Initially, we note that Mr. Allman properly preserved for review only two of the arguments he presents on appeal. Specifically, Mr. Allman’s objections to the magistrate judge’s recommendations do not include the following general arguments made in his opening brief before us: (1) that the vocational expert’s testimony conflicts with the Dictionary of Occupational Titles, and (2) that the ALJ used the term “stable” to indicáte that Mr. Allman’s impairments were not severe. “The scope of our review ... is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal.” Berna v. Chater, 101 F.3d 631, 632 (10th Cir.1996). We have adopted a firm-waiver rule providing that the “failure to make timely objection[s]” to a magistrate judge’s recommendations “waives appellate review of both factual and legal questions.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir.2010) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004)). “There are two exceptions when the firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.’ ” Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir.2005) (internal quotation marks omitted)). Here, neither exception applies because Mr. Allman has counsel and he does not justify how the interests of justice compel review. Because Mr. Allman has not adequately presented these arguments to the district court, they are waived. Additionally, Mr. Allman failed to argue before the district court that the ALJ’s findings under Listing 12.05C," }, { "docid": "23387579", "title": "", "text": "judge concluded that Mr. Childs’ federal claim for retaliation for exercising his First Amendment rights was not conclusory and recommended that it be allowed to proceed. Mr. Childs filed objections to the recommendation, as did defendants. Exercising de novo review, the district court disagreed with the magistrate judge’s recommendation as to the federal claim and, on August 29, 2011, entered an order granting defendants’ motion to dismiss under Rule 12(b)(6) as to all three claims. The court concluded that Mr. Childs had failed to sufficiently allege each defendant’s participation in the alleged retaliation, but the court granted Mr. Childs thirty days in which to amend his complaint to correct the deficiencies in his purported federal claim, if he could. The district court ultimately granted Mr. Childs four extensions of time to file his amended complaint, but gave him a final deadline of February 1, 2012, and warned him not to expect any further extensions of time. On February 9, 2012, Mr. Childs filed an untimely proposed amended complaint and requested a fifth extension of time. Defendants opposed the motion. The district court determined that Mr. Childs had failed to correct the defects in his existing retaliation claim and had also added a new claim (without leave of court) based on seventeen pages of new factual allegations. The court denied Mr. Childs’ motion for a fifth extension of time and his motion to file his proposed amended complaint, and entered a judgment of dismissal. Mr. Childs appeals the dismissal of his original complaint. II.Issues on Appeal and Discussion We review de novo the dismissal of a complaint for failure to state a claim under Rule 12(b)(6). Gee v. Pacheco, 627 F.3d 1178, 1183 (10th Cir.2010). Because Mr. Childs appears pro se, we construe his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). He argues that the district court erred by: (1) dismissing his complaint; and (2) not adopting the magistrate judge’s recommendation to allow his federal retaliation claim to proceed as alleged. We have carefully reviewed the parties’ •briefs in light" }, { "docid": "22180239", "title": "", "text": "“waives appellate review of both factual and legal questions.” Id. There are two exceptions when the firm waiver rule does not apply: “when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the ‘interests of justice’ require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.2005); Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996). Neither exception applies to Mr. Duffield’s case. Though Mr. Duffield is a pro se litigant, the magistrate judge was careful to inform him of both the time period for objecting and the consequences of failing to object, which we have held is sufficient. See, e.g. Wardell v. Duncan, 470 F.3d 954, 958 (10th Cir.2006); Morales-Fernandez, 418 F.3d at 1119. The report “stated in clear English,” id. at 1119, that Mr. Duf-field had until November 19 to object and that failure to do so would waive his right to appellate review of all factual and legal questions. Report and Recommendation at 35. Thus, he cannot avail himself of the first exception to the waiver rule. We are also unpersuaded that the “interests of justice” exception demands that we overlook the waiver rule in Mr. Duffield’s case. Although “interests of justice” is “a rather elusive concept,” Morales-Fernandez, 418 F.3d at 1120, we have considered factors such as “a pro se litigant’s effort to comply, the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised.” Id. Mr. Duffield does not claim to have been unaware of the filing deadline, nor does he claim to have attempted to comply with it. The fault rests with him alone. The only explanation he offers is that the law clerks who had been assisting the inmates at his facility were transferred to another facility. While we appreciate the difficulties of proceeding pro se, Mr. Duffield could have at the least made the factual challenges that he eventually made a week after the deadline had expired, especially as he presumably made the objections at that time" }, { "docid": "22180245", "title": "", "text": "was plain error. Finally, we cannot say that it was plain error to dismiss the claims against Dr. Jackson, Nurse Freeh, and John Doe because Mr. Duffield had failed to allege personal participation in the deprivation of medical care. A § 1983 claim requires an “affirmative link,” Green, 108 F.3d at 1302, between the defendant and the constitutional violation, and it was not plain error to find that Mr. Duffield failed to allege affirmative links for these three defendants. Dr. Jackson supervised the JCCC medical operation, but supervisor status is not sufficient to create § 1983 liability. Id. Nor can we say that the magistrate plainly erred when he found that Mr. Duffield’s suspicions that Dr. Jackson promulgated an unwritten policy against referring inmates to specialists and following specialists’ advice were anything more than speculative, especially since Mr. Duffield did receive a specialist consult. See Report at 7-9. Nurse Freeh facilitated Mr. Duffield’s various requests for medical services, and the finding that she lacked an affirmative link with his diagnosis and treatment because she simply directed Mr. Duffield to the proper procedures for filing his requests was also not plain error. Id. at 9-11. John Doe, the staff and physicians at the Oklahoma University Medical Center, treated Mr. Duffield when he came for a specialist consult, but his allegation that their examination was cursory does not sufficiently allege deliberate indifference rather than mere medical malpractice. Id. at 11-12. Therefore, we cannot say that it was plain error to dismiss Mr. Duffield’s claims against these three defendants. B. Denial of Motion for Extension Mr. Duffield’s argument that the district court erred by denying his motion for a thirty-day extension in which to object to the magistrate judge’s Report and Recommendation, which would thereby enable him to preserve appellate review of the issues, also fails. Mr. Duffield did not file his motion until December 7, 2007, several weeks after the November 19 deadline to object had elapsed. Had he filed a more timely notice for extension, he perhaps would have received it, but we find no abuse of discretion by the district" }, { "docid": "8889723", "title": "", "text": "the defendants moved for several enlargements of time to answer discovery and to file their motions for summary judgment. The district court granted all of the requested extensions. On January 11, 1999, after a telephonic conference with the magistrate judge, the district court issued a “Scheduling Order and Memorandum” (“Scheduling Order”) to govern pre-trial deadlines. The order required the defendants to serve Mr. Long with a final written settlement proposal by February 5,1999. The order also instructed Mr. Long to file his list of witnesses, exhibits, and contentions no later than April 2, 1999. According to the order, “[flailure to file and serve such list within the time allowed will result in the dismissal of plaintiffs action.” R.67 at 3. In the same order, the district court stated that the Scheduling Order would be modified only by leave of court and for good cause shown. Shortly after the scheduling conference, on February 1, 1999, the defendants filed their motion for summary judgment. The defendants failed, however, to serve Mr. Long with “a written final settlement proposal” by February 5, 1999, as required by the Scheduling Order. Id. at 1. Instead, on February 3,1999, the defendants filed a “Position Regarding Settlement,” which stated: “Defendants are currently not in a position to offer Plaintiff a settlement proposal and will be in a position to discuss settlement with Plaintiff after the Court has ruled on Defendants’ Motion for Summary Judgment, submitted on January 29, 1999.” R.76. Mr. Long timely filed his response to the motion for summary judgment. However, Mr. Long did not meet the April 2, 1999, deadline for filing his list of witnesses, exhibits, and contentions. This was the first deadline that Mr. Long missed. On April 9, 1999, the magistrate judge sua sponte issued a report and recommendation (the “April 9 Report”) that Mr. Long’s action be dismissed pursuant to Federal Rule of Civil Procedure 16(f) for failure to comply with the Scheduling Order. The April 9 Report referenced the district court’s prior warning to Mr. Long that failure to timely file his witness and exhibit list would result in" }, { "docid": "19602434", "title": "", "text": "the Magistrate Judge granted the motion and gave the Jacksons until May 20 to respond. The Jacksons responded to the motion to dismiss on May 20, 2016. On May 23, the District Court referred the motion to dismiss to the Magistrate Judge for a report and recommendation. On July 19, the Magistrate Judge issued his Report and Recommendation (\"R&R\"), which recommended dismissal of the amended complaint as against MERS, SLS, and Mellon for failure to state a claim. The R&R comprehensively analyzed each of the Jacksons' sixteen causes of action and determined that none made out a legally cognizable claim. The Jacksons objected to the R&R on the ground that their claims were sufficient. On September 2, just before the District Court was set to rule on the Jacksons' objections to the R&R, the Jacksons moved the Court for leave to amend their amended complaint, submitting with their motion a proposed Second Amended Complaint. On September 7, Bank of America moved the Court for judgment on the pleadings. On September 15, the District Court denied the Jacksons' motion for leave to amend, adopted the R&R, and dismissed the amended complaint with prejudice as to MERS, Mellon, and SLS. On October 3, the Jacksons stipulated to the dismissal of their claims against Bank of America with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1). The next day the District Court terminated the lawsuit with the entry of final judgment. On October 16, the Jacksons appealed the Court's judgment. From that point on, Mr. Lay's delay tactics continued. He moved this Court to extend the deadline to file the Jacksons' opening brief six times. On December 5, Mr. Lay sought and obtained an extension by phone. On December 19, Mr. Lay requested a second extension. He stated that though he had \"been working diligently on the brief,\" he had \"had unexpected medical problems recently and ha[d] only been able to work part time recently.\" On January 31, 2017, Mr. Lay requested a third extension. This time, he stated that while he was still \"working diligently on the brief,\" he had been" }, { "docid": "22180246", "title": "", "text": "directed Mr. Duffield to the proper procedures for filing his requests was also not plain error. Id. at 9-11. John Doe, the staff and physicians at the Oklahoma University Medical Center, treated Mr. Duffield when he came for a specialist consult, but his allegation that their examination was cursory does not sufficiently allege deliberate indifference rather than mere medical malpractice. Id. at 11-12. Therefore, we cannot say that it was plain error to dismiss Mr. Duffield’s claims against these three defendants. B. Denial of Motion for Extension Mr. Duffield’s argument that the district court erred by denying his motion for a thirty-day extension in which to object to the magistrate judge’s Report and Recommendation, which would thereby enable him to preserve appellate review of the issues, also fails. Mr. Duffield did not file his motion until December 7, 2007, several weeks after the November 19 deadline to object had elapsed. Had he filed a more timely notice for extension, he perhaps would have received it, but we find no abuse of discretion by the district court in denying his untimely motion for an extension. III. Conclusion Accordingly, we AFFIRM the district court’s final order, order denying an extension of time, and order striking the objection to the order denying an extension of time. We DENY his motion to supplement the record on appeal. Mr. Duffield’s motion to proceed in forma pauperis is GRANTED, and we remind Mr. Duffield that he is obligated to continue making partial payments until the entire fee has been paid." }, { "docid": "22118968", "title": "", "text": "order and judgment in this case on February 27, 2006, indicating that no party had filed objections to the magistrate judge’s report and recommendation. Mr. Fleming filed a notice of appeal on March 14, 2006. He also filed a motion for rehearing on that day, notifying the District Court that he had timely mailed objections to the magistrate judge’s report and recommendation. The District Court granted Mr. Fleming’s motion and vacated the February 27 order. The court entered a new order adopting the report and recommendation of the magistrate judge on March 24, 2006. The state argues that once the District Court vacated its February 27 order Mr. Fleming’s notice of appeal of that order was rendered moot. Mr. Fleming did not file a new notice of appeal following the entry of the March 24 order, see Fed. R.App. P. 4(a)(1)(A) (requiring a notice of appeal to be filed within 30 days after the judgment or order appealed from is entered), and the state therefore maintains that this Court lacks jurisdiction over the instant matter, see Fed. R.App. P. 3 (conditioning federal appellate jurisdiction on the filing of a timely notice of appeal). We disagree. Rule 3 requires a notice of appeal to “designate the judgment, order, or part thereof being appealed.” Fed. R.App. P. 3(c)(1)(B). We “liberally construe” the rule’s requirements: “when papers are technically at variance with the letter of Rule 3, a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.” Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 116 L.Ed.2d 678 (1992) (alteration and internal quotation marks omitted). Although Mr. Fleming did not file a formal notice of appeal within the 30-day deadline, he did file, on April 14, 2006, a combined “motion for leave to proceed on appeal without prepayment of costs or fees and application for certificate of appeala-bility.” He also filed a pro se docketing statement. Furthermore, although Mr. Fleming’s April 14 motion expressly references the vacated February 27 order, this discrepancy does not render" }, { "docid": "22429579", "title": "", "text": "findings and recommendations. This circuit has “adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate [judge].” Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir.2004) (internal quotation marks omitted). “[The rule] provides that the failure to make timely objection ... waives appellate review of both factual and legal questions.” Id. (internal quotation marks omitted). We may, however, grant relief from the rule in the “interests of justice.” Id. (internal quotation marks omitted). Among the “factors this court has considered in determining whether to invoke the [interests-of-justice] exception” are “[1] a pro se litigant’s effort to comply, [2] the force and plausibility of the explanation for his failure to comply, and [3] the importance of the issues raised.” Morales-Femandez v. INS, 418 F.3d 1116, 1120 (10th Cir.2005). We begin with the first two factors — Mr. Casanova’s effort to comply, and the force and plausibility of his explanation for his failure to comply. In his letter to the district court asserting that he had not received the magistrate judge’s report, Mr. Casanova stated that he had inquired about filings at the district-court clerk’s office on November 14, 2008; December 22, 2008; January 5, 2009; and January 12, 2009 (the report was entered on January 16). He stated that from January 28 to February 11, 2009, he was indisposed by medical procedures for colorectal neoplasia. Furthermore, the record suggests that there was an earlier problem with mail delivery to Mr. Casanova. Ulibarri represents that “[t]he [district court had no indication that there were any problems with mail delivery to the address provided by [Mr. Casanova] since the filing of the complaint in March 2008.” Aplee. Br. at 3. But even though it is true that the record does not contain “any notice of returned or undeliverable mail,” id., Mr. Casanova had earlier alerted the court to a mail-delivery delay: On September 26, 2008, Mr. Casanova filed a “Motion to alert or warn the Court” stating that he had not received Ulibarri’s motion to dismiss, which was due on September 22, 2008. He" }, { "docid": "15667540", "title": "", "text": "district court consolidated the two actions and referred the case both to mediation and to a magistrate judge. In February 1998, the magistrate issued a report and recommendation in favor of the District’s summary judgment motion and against Kidd’s motion for partial summary judgment. Kidd filed an objection to the magistrate’s report, but the district court adopted the report and granted summary judgment in the District’s favor on March 19, 1998. As a consequence, no claim of Kidd’s survived. Kidd appeals from the district court’s grant of summary judgment and the dismissal of her other claims. But the threshold problem is the District of Columbia’s challenge to our jurisdiction. The District argues that the district court’s order of March 19, 1998, stating that the District’s “Motion for Summary Judgment ... is GRANTED,” qualified as a judgment under Rule 58, so that Kidd’s appeal, filed 41 days after its entry, was untimely under Rule 4(a) of the Federal Rules of Appellate Procedure. We agree and therefore dismiss Kidd’s appeal. The time limits established by Rule 4(a) are “mandatory and jurisdictional.” Moore v. South Carolina Labor Bd., 100 F.3d 162, 163 (D.C.Cir.1996). Kidd offers two theories either of which, if correct, would moot the Rule 58 issue. She first argues that she has shown good cause for her failure to file within the ordinary appeal period. See Fed. R.App. P. 4(a)(5) (“The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).”). Kidd points to compelling evidence — indeed, evidence not disputed by the District — that she received no notice of the district court’s order until April 14, 1998 at the earliest, and received no copy until April 28. But Rule 4(a)(5) requires appellants to file a motion requesting an extension of time with the district court. Kidd filed no such motion, and therefore Rule 4(a)(5) is inapplicable. Rule 4(a)(6) also provides an avenue of relief for a party receiving notice" }, { "docid": "8020603", "title": "", "text": "screened until 2003, seven years after its filing, he argues its dismissal was not authorized under § 1915A and was contrary to the statute’s intent, ie., to weed out meritless inmate complaints before or immediately after filing. While Jones and PLN’s arguments may have merit, we need not resolve them here because Jones and PLN failed to object to the magistrate’s report and recommendation on those grounds. We have adopted a “firm waiver rule” whereby the failure to timely object to a “magistrate’s findings or recommendations waives appellate review of both factual and legal questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). “This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.2005) (quotations omitted). Neither exception to the firm waiver rule applies here. First, Jones and PLN did not proceed pro se; they were represented by counsel. Second, the interests of justice do not require suspension of the rule. While the district court may have inappropriately dismissed Jones’ and PLN’s complaints pursuant to §§ 1915(e)(2)(B) and 1915A, we can simply construe the district court’s actions as a sua sponte grant of summary judgment to the defendants because it appears both the magistrate and district court considered and relied on evidence outside the pleadings. See Fed.R.CivP. 12(b). Although not favored, “a sua sponte order of summary judgment may be appropriate if the losing party was on notice that [they] had to come forward with all of [their] evidence. 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, 1245-16 (10th Cir.2005) (citation and quotations omitted). There is no indication of prejudice here. Prior to the district court’s dismissal, Jones had filed a motion for partial summary judgment on the issue of liability and his request for injunctive relief and" }, { "docid": "22180236", "title": "", "text": "30, 2007, the magistrate judge issued a Report and Recommendation in which he recommended that the defendants’ motions for dismissal and motions for summary judgment be granted. Specifically, he recommended that the claims against Dr. Jackson, Nurse Freeh, and John Doe be dismissed because Mr. Duffield had failed to allege that any of them was personally involved in the alleged deliberate indifference, and he recommended summary judgment for Mr. Arian and Dr. Troutt because Mr. Duffield had failed to produce evidence showing a genuine issue of material fact that either men had exhibited deliberate indifference. He also denied without prejudice Mr. Duf-field’s request for limited discovery for service and for appointment of counsel. The magistrate judge’s Report and Recommendation ended with an explicit message to Mr. Duffield that advised him of his right to object to the report and the consequences of failing to do so: The Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by November 19, 2007, in accordance with 28 U.S.C. § 636 and Local Civil Rule 72.1. The Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656 (10th Cir.1991). Report and Recommendation at 35. The November 19, 2007 deadline came and went without any objection from Mr. Duf-field. On November 27, 2007, the district court entered an order that adopted the magistrate judge’s report and recommendation in its entirety. Three days later, on November 30, the court received an undated letter from Mr. Duffield in which he disputed some of the report’s factual findings and claimed that the Department of Corrections no longer had legal aides who could assist him. R. at 24. On December 11, Mr. Duffield filed a motion for a thirty-day extension in which to object to the Report and Recommendation. The district court denied his request, citing the fact that “the deadline for objection passed without a request for extension and ..." }, { "docid": "8889724", "title": "", "text": "proposal” by February 5, 1999, as required by the Scheduling Order. Id. at 1. Instead, on February 3,1999, the defendants filed a “Position Regarding Settlement,” which stated: “Defendants are currently not in a position to offer Plaintiff a settlement proposal and will be in a position to discuss settlement with Plaintiff after the Court has ruled on Defendants’ Motion for Summary Judgment, submitted on January 29, 1999.” R.76. Mr. Long timely filed his response to the motion for summary judgment. However, Mr. Long did not meet the April 2, 1999, deadline for filing his list of witnesses, exhibits, and contentions. This was the first deadline that Mr. Long missed. On April 9, 1999, the magistrate judge sua sponte issued a report and recommendation (the “April 9 Report”) that Mr. Long’s action be dismissed pursuant to Federal Rule of Civil Procedure 16(f) for failure to comply with the Scheduling Order. The April 9 Report referenced the district court’s prior warning to Mr. Long that failure to timely file his witness and exhibit list would result in dismissal; it did not address the adequacy of lesser sanctions. Mr. Long filed his objections to the April 9 Report on April 16, 1999. Specifically, Mr. Long explained that it was his belief that the summary judgment motion was still pending and, during the pendency of the motion, all other court actions were suspended. He stated: Because Plaintiff believed that the Court’s decision on the defendants’ summary judgement motion was still pending Plaintiff neglected to comply with this Court’s Scheduling Order of January 11, 1999 inadvertenly [sic] in that he interpreted summary judgment proceedings to suspend all other proceedings pending the Court’s decision whether to grant or deny summary judgment requests, thus Plaintiff believed that submitting other matters to the court would be futile or moot.- R.84 at 1-2. Mr. Long also asked the district court to consider his diligence “in complying with all of the court’s orders through the course of the proceedings” and argued that his “inadvertent neglect ... was excusable.” Id. at 2. On April 22, 1999, the district court approved the" }, { "docid": "22180237", "title": "", "text": "28 U.S.C. § 636 and Local Civil Rule 72.1. The Plaintiff is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal questions contained herein. Moore v. United States, 950 F.2d 656 (10th Cir.1991). Report and Recommendation at 35. The November 19, 2007 deadline came and went without any objection from Mr. Duf-field. On November 27, 2007, the district court entered an order that adopted the magistrate judge’s report and recommendation in its entirety. Three days later, on November 30, the court received an undated letter from Mr. Duffield in which he disputed some of the report’s factual findings and claimed that the Department of Corrections no longer had legal aides who could assist him. R. at 24. On December 11, Mr. Duffield filed a motion for a thirty-day extension in which to object to the Report and Recommendation. The district court denied his request, citing the fact that “the deadline for objection passed without a request for extension and ... Plaintiff was not diligent in seeking an extension.” Order of December 12, 2007. Mr. Duffield filed an objection to the denial of an extension on December 19, 2007, which the district court struck as repetitive on December 21. Mr. Duffield now appeals the final order, the order denying his extension of time, and the order striking his objection to the order denying an extension of time. II. Analysis A. Waiver of Appellate Review Mr. Duffield disputes the factual findings recommended by the magistrate judge and adopted by the district court, arguing that there is a genuine issue of material fact as to whether the behavior of each defendant rose to the level of deliberate indifference to his medical conditions. The record unequivocally shows, however, that Mr. Duffield failed to timely object to the magistrate’s report. “[W]e have adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate.” Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). The failure to timely object to a magistrate’s recommendations" }, { "docid": "22180238", "title": "", "text": "Plaintiff was not diligent in seeking an extension.” Order of December 12, 2007. Mr. Duffield filed an objection to the denial of an extension on December 19, 2007, which the district court struck as repetitive on December 21. Mr. Duffield now appeals the final order, the order denying his extension of time, and the order striking his objection to the order denying an extension of time. II. Analysis A. Waiver of Appellate Review Mr. Duffield disputes the factual findings recommended by the magistrate judge and adopted by the district court, arguing that there is a genuine issue of material fact as to whether the behavior of each defendant rose to the level of deliberate indifference to his medical conditions. The record unequivocally shows, however, that Mr. Duffield failed to timely object to the magistrate’s report. “[W]e have adopted a firm waiver rule when a party fails to object to the findings and recommendations of the magistrate.” Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). The failure to timely object to a magistrate’s recommendations “waives appellate review of both factual and legal questions.” Id. There are two exceptions when the firm waiver rule does not apply: “when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the ‘interests of justice’ require review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.2005); Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir.1996). Neither exception applies to Mr. Duffield’s case. Though Mr. Duffield is a pro se litigant, the magistrate judge was careful to inform him of both the time period for objecting and the consequences of failing to object, which we have held is sufficient. See, e.g. Wardell v. Duncan, 470 F.3d 954, 958 (10th Cir.2006); Morales-Fernandez, 418 F.3d at 1119. The report “stated in clear English,” id. at 1119, that Mr. Duf-field had until November 19 to object and that failure to do so would waive his right to appellate review of all factual and legal questions. Report and Recommendation at 35. Thus," } ]

[ { "docid": "22658469", "title": "", "text": "measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells. So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio.. “ Whether the free operation of the normal laws of competition is a wise and wholesome rule for trade and commerce is an economic question which this court need riot consider or determine.” Northern Securities Co. v. United States, 193 U.S. 197, 337-8. And it is equally clear that if the legislative policy be to curb unrestrained and harmful competition by measures which are not arbitrary or discriminatory it does not lie with the courts to determine that the rule is unwise. With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal. The course of decision in this court exhibits a firm adherence to these principles. Times without number we have said that the legislature is primarily the judge of the necessity of such an enact ment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power. The law-making bodies have in the past endeavored to promote free competition by laws aimed at trusts and monopolies. The consequent interference with private property and freedom of contract has not availed with the courts to" } ]

[ { "docid": "8138922", "title": "", "text": "79 L.Ed. 1322. Every possible presumption is in favor of the validity of the statute, and this continues uútil the contrary is shown beyond a rational doubt. In no doubtful case should a legislative act be pronounced contrary to the Constitution. One branch of the government cannot encroach upon the domain of another without danger. The safety of our institutions depends upon a strict observance of this salutary rule. Sinking Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496; Nicol v. Ames, 173 U.S. 509, 514, 19 S.Ct. 522, 43 L.Ed. 786; Fairbank v. United States, 181 U.S. 283, 287, 288, 21 S.Ct. 648, 45 L.Ed. 862. In passing upon questions of constitutionality, the court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, it is the plain duty of the court to adopt the one which will save the act. Panama Railway Co. v. Johnson, 264 U.S. 375, 390, 44 S.Ct. 391, 68 L.Ed. 748; Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206; Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed. 851, 61 A.L.R. 906. The remedy provided by the statute must be invoked unless that remedy is inadequate or the statute is wholly void. Resort to equity may not be had merely because of an anticipation of improper or invalid action in administration. Continental Baking Co. v. Woodring, 286 U.S. 352, 369, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402, and cases cited. The main objections to this statute on constitutional grounds will be simplified when the statute and the bill of complaint are examined in the light of the elementary rules just stated. 1. Interstate and Intrastate Commerce. The power of the Board is expressly limited by the statute, section 10 (a), 29 U.S.C.A. § 160 (a), to preventing unfair labor practices affecting commerce. The term “affecting commerce” is defined, section 2 (7), 29 U.S.C.A. §" }, { "docid": "8347725", "title": "", "text": "sections 77 and 77B from the act here in question, But when we are dealing with the exercise of’ the constitutional power, it would seem that if the Congress can confer on the bankruptcy courts the power theretofore exercised by courts of equity corporate receiverships, a fortiori it may constitutionally confer on bankruptcy courts for farmers the same power as conferred for corporation. The act under consideration is not in its terms essentially different from the Minnesota Moratorium Law (Laws 1933, c. 339), which was sustained by the Supreme Court in the case of Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481. The Minnesota act may be said to have been sustained as a valid exercise of the police power of the state, justified by an emergency, and that Congress has no such power; but in answer to this, the Congress may exercise its constitutional powers for any purpose for which a state may exercise its powers. Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann.Cas. 1913E, 905; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764; Seven Cases v. United States, 239 U.S. 510, 36 S.Ct. 190, 60 L. Ed. 411; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R. A. 1917F, 502, Ann.Cas. 1917B, 1168; Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, 60 L.Ed. 308, Ann.Cas. 1916C, 317; Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L.Ed. 904; Board of Trustees of University of Illinois v. United States, 289 U.S. 48, 53 S.Ct. 509, 77 L.Ed. 1025; Block v. Hirsch, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165. In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & P. Railway Co., supra, the court" }, { "docid": "12860191", "title": "", "text": "interpretations of the uniformity provision as not creating exclusive power in the federal government reflect administrative necessity rather than an understanding contrary to that expressed in The Federalist No. 32. As Hamilton, Story, and the other early interpreters make clear, the uniformity provision was intended to grant exclusive power to the federal government. Hood, 319 F.3d at 765 (emphasis added) (translation added). The gist, then, of Hood is that Congress is the exclusive repository of the power to enact bankruptcy laws notwithstanding the exception later discovered in Sturges. Indeed, the Supreme Court in International Shoe confirmed Hood’s interpretation when it observed that “[s]tates may not pass or enforce laws to interfere with or complement the Bankruptcy Act .... ” International Shoe, 278 U.S. at 265, 49 S.Ct. 108 (emphasis added). Therefore, it follows that Congress cannot re-delegate or otherwise renounce this power without being in violation of the Constitution. However, accepting Hood’s interpretation of Sturges does not mean that Sullivan is wrong or that Section 522(b)(2) itself must be declared unconstitutional. As already discussed, a narrow interpretation of Section 522(b)(2) recognizes only those exemptions that a state generally extends to debtors under its debt enforcement laws. Indeed, the rules of statutory construction compel this narrower interpretation because the constitutionality of Section 522(b)(2) is at question. But, in determining whether the legislature, in a peculiar enactment, has passed the limits of its constitutional authority, every reasonable presumption must be indulged in favor of the validity of such enactment. It must be regarded as valid, unless it can be clearly shown to be in conflict with the constitution. It is a well-settled rule of constitutional exposition, that if a statute may or may not be, according to the circumstances, within the limits of legislative authority, the existence of the circumstances necessary to support it must be presumed, (citations omitted). Sweet v. Rechel, 159 U.S. 380, 392-93, 16 S.Ct. 43, 46, 40 L.Ed. 188 (1895). See also, I.N.S. v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (courts are obligated to construe statutes to avoid serious constitutional problems" }, { "docid": "15303321", "title": "", "text": "of judicial notice, we are required to consider the rationally conceivable facts attributable to the deliberation and belief of the Congress in enacting the agricultural adjustment legislation. This is under the rule stated in the opinion of Justice Bushrod Washington in Ogden v. Saunders, 12 Wheat. 213, 269, 270, 6 L.Ed. 606: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt,” and more recently stated in Mr. Justice Van Devanter’s opinion in, Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369, Ann.Cas.1912C, 160: “ * * * if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” Recently in construing certain provisions of the act of Congress in question here, the Supreme Court states the rule to be that: “Every presumption is to be indulged in favor of faithful compliance by Congress with the mandates of the fundamental law.” United States v. Butler, 297 U.S. 1, 67, 56 S.Ct. 312, 320, 80 L.Ed. 477, 102 A.L.R. 914. Though its repetition may seem trite, it is an axiom of our judicial function that the acceptance of such conceivable congressional factual motivation is required of us, so far as it is humanly possible, with complete disregard of any doubt or conviction of its error from the viewpoint of our economic or pólicital predilections. We take notice of the “constantly recurring burden on interstate commerce” during the successive economic depressions of the last hundred years, in which the larger railway carriers of the United States have been reduced to bankruptcy or receivership by the drop in volume of interstate-carried merchandise, due to the ability of consumers to purchase less than the average of the production of both the agricultural and manufacturing states. In a very true sense it is a" }, { "docid": "7562612", "title": "", "text": "But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 10 U.S. (6 Cranch) 85, 128, 3 L.Ed. 162 (1810) (emphasis added). “ ‘Every possible presumption ... is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.’ ” Powell v. Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 32 L.Ed. 253 (1887) (quoting In re Sinking Fund Cases, 99 U.S. (9 Otto) 700, 718, 25 L.Ed. 496, 504 (1879)). See also Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445-46, 47 L.Ed.2d 708 (1976) (Justice Rehnquist, now Chief Justice, stated that state decisions regarding social legislation are “entitled to the same sort of presumption of legislative validity as are state choices designed to promote other aims within the cognizance of the State’s police power.”). As the Supreme Court recently observed in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S.Ct. 2709, 2717, 81 L.Ed.2d 601 (1984): “ ‘It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Williamson v. Lee Optical Co., 348 U.S. 483, 487-488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955).’ ” (quoting Usery v. Turner Elkhom Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752 (1976)). See also Rhinebarger v. Orr, 839 F.2d 387, 388 (7th Cir.1988) (Chief Judge Bauer observed: “It is well established that congressional legislation ‘adjusting the burdens and benefits of economic life’" }, { "docid": "8482875", "title": "", "text": "Cas. 757; Lovell v. City of Griffin, 1938, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949. However, a county ordinance is not deemed a “statute of a State” within the meaning of § 266 of the Judicial Code as amended (28 U.S.C.A. § 380) so as to permit a three-judge court to be convened to decide the constitutionality of the measure. Phillips v. United States, 1941, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800; Borges v. Loftis, 9 Cir., 1937, 87 F.2d 734. Under our system it is the function of the legislative branch to exercise what are known as the police powers of the state, and thus to determine what measures are appropriate or needful for the protection of the public welfare, and especially the public health, the public safety, and the public morals. Mugler v. Kansas, 1887, 123 U.S. 623, 661, 8 S.Ct. 273, 31 L.Ed. 205; Nebbia v. People of State of New York, 1934, 291 U.S. 502, 524, 525, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469. Every legislative enactment is-rightly presumed to -be constitutional. Unless the judicial branch is compelled'to say the questioned enactment is clearly out of constitutional bounds, the expressed will of the legislative should be given effect. Munn v. Illinois, 1876, 94 U.S. 113, 123, 24 L.Ed. 77; Sage Stores Co. v. Kansas, 1944, 323 U.S. 32, 35, 65 S.Ct. 9, 89 L.Ed. 25. Courts will always assume that the legislative body has acted according to its honest judgment for the best interests of the slate. Florida Central & P. R. Co. v. Reynolds, 1902, 183 U.S. 471, 480, 22 S.Ct. 176, 46 L.Ed. 283; Ellis v. United States, 1907, 206 U.S. 246, 256, 27 S.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589; In re Smith, 1904, 143 Cal. 368, 373, 77 P. 180, 182. When, as here, an enactment is challenged upon constitutional grounds, judicial inquiry should properly exclude questions of policy and deal solely with the single question of constitutional power-—• whether or not the measure was within the range of legislative power granted to" }, { "docid": "15199798", "title": "", "text": "judgment under the Declaratory Judgments Act. We consider first the constitutionality of the act. By the Sixteenth Amendment to the Constitution of the United States, the Congress was given-power “to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several’states, and without regard to any census or enumeration.” Income within the meaning of this amendment is “the fruit that is born of capital,” “it is income as the word is known in the common speech of men.” United States v. Safety Car Heating Co. (1936) 297 U.S. 88, 99, 56 S.Ct. 353, 358, 80 L.Ed. 500. The power to tax income has always existed in the Congress. The amendment merely removed the. necessity for apportionment of taxes on income among the states. Brushaber v. Union Pacific R. R. Co. (1916) 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493, L.R.A.1917D, 414, Ann.Cas.1917B, 713; Peck & Co. v. Lowe (1918) 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049; Bowers v. Kerbaugh-Empire Co. (1926) 271 U.S. 170, 46 S.Ct. 449, 70 L.Ed. 886. In determining the validity of any tax, income, or other, the relation between the exercise of the taxing power and the Fifth Amendment comes into play often. The due process clause of that amendment is not a limitation upon the taxing power of the Congress except in what the Supreme Court has called “rare and special instances.” A. Magnano Co. v. Hamilton (1934) 292 U.S. 40, 44, 54 S.Ct. 599, 601, 78 L.Ed. 1109. These instances involve cases where the tax is “so arbitrary and capricious as to cause it to fall” before that clause. Tyler v. United States (1930) 281 U.S. 497, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758; and see, Brushaber v. Union Pacific R. R. Co. (1915) 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493, L.R.A.1917D, 414, Ann.Cas.1917B, 713; Heiner v. Donnan (1932) 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772. Tax statutes have been nullified, as within this class, when (1) they were, in effect, a fine or penalty imposed summarily, without a hearing (Lipke" }, { "docid": "8138921", "title": "", "text": "asked to interfere by injunction with the administrative acts of an agency of the federal government. In such a case it is of the greatest importance that the rules by which the court is limited in granting relief of the kind here sought should be strictly observed. Even if there were no doubt as to the unconstitutionality of a statute, that of itself is not a sufficient ground for equitable relief against its enforcement. It must be made to appear that plaintiff is suffering from or being threatened with some injury which cannot be adequately remedied unless an injunction is granted. Boise Artesian Water Co. v. Boise City, 213 U.S. 276, 285, 29 S.Ct. 426, 53 L.Ed. 796; Truax v. Raich, 239 U.S. 33, 38, 36 S.Ct. 7, 60 L. Ed. 131, L.R.A.1916D, 545, Ann.Cas. 1917B, 283; Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078; Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322. Every possible presumption is in favor of the validity of the statute, and this continues uútil the contrary is shown beyond a rational doubt. In no doubtful case should a legislative act be pronounced contrary to the Constitution. One branch of the government cannot encroach upon the domain of another without danger. The safety of our institutions depends upon a strict observance of this salutary rule. Sinking Fund Cases, 99 U.S. 700, 718, 25 L.Ed. 496; Nicol v. Ames, 173 U.S. 509, 514, 19 S.Ct. 522, 43 L.Ed. 786; Fairbank v. United States, 181 U.S. 283, 287, 288, 21 S.Ct. 648, 45 L.Ed. 862. In passing upon questions of constitutionality, the court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, it is the plain duty of the court to adopt the one which will save the act. Panama Railway Co." }, { "docid": "14020819", "title": "", "text": "40 S.Ct. 293, 296-299, 64 L.Ed. 343, 8 A.L.R. 1121; United States v. International Harvester Co., 274 U.S. 693, 708, 709, 47 S.Ct. 748, 753, 754, 71 L.Ed. 1302) becomes important only in cases where the offense charged is the actual monopolizing of any part of trade or commerce in violation of § 2 of die Act, 15 TJ.S.C.A. § 2. An intent and a power to produce the result which the law condemns are then necessary. As stated in Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518, ‘ * * * when that intent and the consequent dangerous probability exist, this statute, like many others and like the common law in some cases, directs itself against that dangerous probability as well as against tile completed result.’ But the crime under § 1 is legally distinct from that under § 2 (United States v. MacAndrews & Forbes Co., C.C., 149 F. 836; United States v. Buchalter, 2 Cir., 88 F.2d 625) though the two sections overlap in the sense that a monopoly under § 2 is a specios of restraint of trade under § 1. Standard Oil Co. v. United States, 221 U. S. 1, 59-61, 31 S.Ct. 502, 515, 510, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas. 1912D, 734; Patterson v. United States, supra, 222 F. p. 020. Only a confusion between the nature of the offenses under those two sections (see United States v. Nelson, D.C., 52 F. 646; United States v. Patterson, C.C., 55 F. 605; Chesapeake & O. Fuel Co. v. United States, 6 Cir., 115 F. 610) would lead to the conclusion that power to fix prices was necessary for proof of a price-fixing conspiracy under § 1. Cf. State v. Eastern Coal Co., 29 R.I. 254, 70 A. 1, 132 Am.St. Rep. 817, 17 Ann.Cas. 96; State v. Scollard, 126 Wash. 335, 218 P. 224, 32 A.L. R. 1082.” Chicago, St. Louis & New Orleans Railroad Company v. Pullman Southern Car Company, 1891, 139 U.S. 79, 11 S.Ct. 490, 35 L.Ed. 97. “It is not" }, { "docid": "22641536", "title": "", "text": "have been reenforced by our subsequent decisions. Thus in Radice v. New York, 264 U. S. 292, we sustained the New York statute which restricted the employment of women in restaurants at night. In O’Gorman & Young v. Hartford Fire Insurance Co., 282 U. S. 251, which upheld an act regulating the commissions of insurance agents, we pointed to the presumption of the constitutionality of a statute dealing with a subject within the scope of the police power and to the absence of any factual foundation of record for deciding that the limits of power had been transcended. In Nebbia v. New York, 291 U. S. 502, dealing with the New York statute providing for minimum prices for milk, the general subject of the regulation of the use of private property and of the making of private contracts received an exhaustive examination and we again declared that if such laws “have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied” ; that “with the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal”; that “times without number we have said that the legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the. court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.” Id., pp. 537, 538. With full recognition of the earnestness and vigor which characterize the prevailing opinion in the Adkins case, we find it impossible to reconcile that ruling with these well-considered declarations. What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers? And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to" }, { "docid": "8758654", "title": "", "text": "D.C., 8 F.Supp. 447; Franklin Process Co. v. Hoosac Mills Corporation, D.C., 8 F.Supp. 552. As was said in the Franklin Process Case, page 562— “ * * * But probably no presumption is more thoroughly established than the presumption that an enactment by a legislative body does not transcend the powers possessed by that body. Erie R. Co. v. Williams, 233 U.S. 685, 699, 34 S.Ct. 761, 58 L.Ed. 1155, 51 L.R.A. (N.S.) 1097; Mountain Timber Co. v. Washington, supra [243 U.S. 219, 37 S.Ct. 260, 61 L.Ed, 685, Ann.Cas.1917D, 642]; United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045. * * * ” See, also, Larabee Flour Mills Co. v. Nee, D.C., 12 F.Supp. 395, 402, where Judge Otis comments— “Every statute regularly enacted by the Congress is presumed to be constitutional. No statute is to be declared unconstitutional unless it appears beyond reasonable doubt to be so. * * * ” See, also, Paramino Lumber Co.v. Marshall, D.C., 18 F.Supp. 645, 648; Sparks v. Hart Coal Corporation, 6 Cir., 74 F.2d 697. These principles are peculiarly pertinent when Congress has legislated upon the subject of taxation. In the case of Mather v. MacLaughlin, D.C., 57 F.2d 223, 225, the principle is well stated— “We have been asked to find that this act is unconstitutional. This we decline to do. One reason for the refusal we state with diffidence, because in entertaining it we are out of accord with those who think the position to be untenable because illogical. The position taken is that the question of the constitutionality of an act of Congress is best left to the appellate courts and that a trial court should not annul an act unless it is in conflict with some plain mandate of the Constitution. This is not a rule of law but of judicial policy. We are further not in accord with the arguments urged upon 'us supporting the unconstitutionality of this act. Congress was legislating upon the subject of taxation—a subject of legislation expressly committed to and emphatically" }, { "docid": "4204574", "title": "", "text": "in the industry. They assert also that a case similar to the one in suit attacking the constitutionality of Act 193 of 1958 is on its way through the state courts, and that it would be improper for this Court to act in the premises until there has been a definitive interpretation of the Act by the Supreme Court of Louisiana. There can be no question but that a state is free to adopt “whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose.” Nebbia v. People of State of New York, 291 U.S. 502, 537, 54 S.Ct. 505, 516, 78 L.Ed. 940. If the legislation adopted has a reasonable relation to the proper legislative purpose and is neither arbitrary nor discriminatory, it is safe from nullification by courts for “the Legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power.” Nebbia v. New York, supra, 291 U.S. at page 537, 54 S.Ct. at page 516. Nor can there be any question concerning the right of a Legislature to regulate competition, by price control or otherwise, in an industry which affects a large segment of the public. And again the wisdom of such regulation “is an economic question which this court need not consider or determine.” Northern Securities Co. v. United States, 193 U.S. 197, 337, 338, 24 S.Ct. 436, 457, 48 L.Ed. 679. Unless such regulation is demonstrably arbitrary, discriminatory or irrelevant to the legislative purpose, there is no constitutional infirmity. With these principles in mind, it is difficult, if not impossible, to determine the constitutionality of Act 193 of 1958 on the basis of the record made on application for temporary injunction. It is clear from that record, however, that this legislation seeks comprehensively to regulate the dairy industry in Louisiana to an extent not heretofore attempted." }, { "docid": "6667908", "title": "", "text": "furnishing private wires at those places conveying the quotations of the exchanges, as well as transmitting the orders for such unlawful contracts, is essential to the maintenance of these places, as without them the bill alleges the business of its correspondents cannot 'be successfully carried on. To grant the relief prayed would compel the telegraph company to aid in maintaining what the state has, in effect, determined to be a nuisance. But, even if there be some doubt as to the constitutionality of the act, it is well settled that all doubts must be resolved in favor of he constitutionality of an act of the Legislature. It is well to refer here to the language of Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162, the leading case on that question. He said: “The question whether a law be void for its repugnancy to the Constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided1 in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Or in the language of Mr. Justice Holmes in Interstate, etc., Ry. Co. v. Massachusetts (decided Nov. 4, 1907) 207 U. S. 79, 28 Sup. Ct. 26, 52 L. Ed.-: “It is not enough that the statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real ■doubt, a law must be sustained.” • Does the fact that such contracts are valid in the states where they were to be made and performed, as is alleged" }, { "docid": "6676948", "title": "", "text": "the legislature intends to bind itself in a contractual manner. See National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 465-66, 105 S.Ct. 1441, 1451, 84 L.Ed.2d 432 (1985) (“[AJbsent some clear indication that the legislature intends to bind itself contractually, the presumption is that ‘a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.’ ” (quoting Dodge v. Board of Educ., 302 U.S. 74, 79, 58 S.Ct. 98, 100, 82 L.Ed. 57 (1937))); United States Trust Co., 431 U.S. at 17-18 n, 14, 97 S.Ct. at 1515-16 n. 14 (a statute, may be treated as a binding contract, “when the language and the circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the state.”). This threshold requirement for the recognition of public contracts has been referred to as the “unmistakability doctrine.” See McGrath, 88 F.3d at 19 (citing United States v. Winstar, — U.S. -, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996)). In United States v. Winstar, the Supreme Court traced the history of the unmistakability doctrine from Justice Marshall’s opinion in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810), and explained its purpose. Because legislatures should not bind future legislatures from employing their sovereign powers in the absence of the clearest of intent to create vested rights protected under the Contract Clause, courts developed canons of construction disfavoring implied governmental contractual obligations. Thus, “ ‘neither the right of taxation, nor any other power of sovereignty, will be held ... to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken.’ ” Winstar, — U.S. at -, 116 S.Ct. at 2455 (quoting Jefferson Branch Bank v. Skelly, 66 U.S. (1 Black) 436, 446 (1861)). The requirement that “the- government’s obligation unmistakably appear thus served the dual purposes of limiting contractual incursions on a State’s sovereign powers and of avoiding difficult • constitutional questions about the extent of State authority, to limit" }, { "docid": "4180617", "title": "", "text": "unless it conforms in its substantive elements to the criteria established under our revenue laws. These commonly accepted criteria, although not defined in the statute, may be easily ascertained. It is clear from a reading of the Act, as well as the revenue acts which preceded it, and the cases interpretive of its provisions, that an income tax is a direct tax upon income as therein defined. Brushaber v. Union Pacific R. Co., 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493, L.R.A.1917D, 414, Ann.Cas.1917B, 713; Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570; and, other cases hereinafter cited. The defined concept of income has been uniformly restricted to a gain realized or a profit derived from capital, labor, or both. Section 22(a) of the Internal Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Acts, page 825; Helvering v. Bruun, 309 U.S. 461, 60 S.Ct. 631, 84 L.Ed. 864; United States v. Safety Car Heating Co., 297 U.S. 88, 56 S.Ct. 353, 80 L.Ed. 500; Douglas v. Willcuts, 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A.L.R. 391; United States v. Kirby Lumber Co., 284 U.S. 1, 52 S.Ct. 4, 76 L.Ed. 131; Burnet v. Wells, 289 U.S. 670, 53 S.Ct. 761, 77 L.Ed. 1439; Corliss v. Bowers, 281 U.S. 376, 50 S.Ct. 336, 74 L.Ed. 916; Miles v. Safe Deposit & Trust Co., 259 U.S. 247, 42 S.Ct. 483, 66 L.Ed. 923; Eisner v. Macomber, supra; Lynch v. Hornby, 247 U.S. 339, 38 S.Ct. 543, 62 L.Ed. 1149; Southern Pac. Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; MacLaughlin v. Harr, 3 Cir., 99 F.2d 638. It seems logical to conclude that any tax, if it is to qualify as a tax on income within the meaning of Section 131 (a) (1), is subject to the same basic restrictions. The Supreme Court, without advancing any precise definition of the term “income tax”, has unmistakably determined that taxes imposed on subjects other than income, e.g., franchises, privileges, etc., are not income taxes, although measured on the basis of" }, { "docid": "4213982", "title": "", "text": "law will regard the corporation as an association of persons.” Of the many other cases to the same effect, see State ex rel. v. Standard Oil Co., 49 Ohio St. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541; First National Bank v. F. C. Trebein Co., 59 Ohio St. 316, 52 N. E. 834. From the allegations in the complaint it is beyond question that the Maine Company is merely a subsidiary of the New Jersey Company, and that both are under the absolute control, by reason of its stock ownership, of the New Jersey Corporation. The acts of one are the acts of all these corporations; in fact, it may truthfully be said that they are the acts of the United Shoe Machinery Corporation. This being the case, they are properly joined as defendants. Is section 3 of the Clayton Act, so far as it applies to leases, unconstitutional? Counsel for defendants challenge the constitutionality of so much of section 3 of the Clayton Act as applies to leases. It has been earnestly and ably argued that a lease is no more commerce than insurance or manufacturing, and it is claimed, if not commerce, it cannot be interstate commerce. The diligence of the able counsel has not been rewarded by finding any authority which has determined that question, nor has the court been able to find any. In the argument many extreme illustrations were made. It is a well-settled rule that courts are slow to declare the acts of co-ordinate departments of the government void, and unless it appears beyond a reasonable doubt that the act is violative of the fundamental law of the United States the courts will uphold it. As stated by Mr. Justice Holmes in Interstate, etc., Railway Co. v. Massachusetts, 207 U. S. 79, 128 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555: “It is not enough that a statute goes to the verge of constitutional power. Wo must be able to see clearly that it goes beyond that power. In case of a real" }, { "docid": "22593338", "title": "", "text": "1003 (1959) (Highway safety measures enacted by a state carry a strong presumption of validity); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (Every presumption favors validity of legislative enactment and though court may hold views inconsistent with wisdom of law, it may not be annulled unless palpably in excess of legislative power) ; Corporation Commission of Oklahoma v. Lowe, 281 U.S. 431, 50 S.Ct. 397, 74 L.Ed. 945 (1930) (It is to be presumed that state in enforcing local policies will conform its requirements to federal guaranties) . . See the cases cited in note 4, supra. . Dawson v. Hillsborough County, Florida School Board, 5 Cir. 1971, 445 F.2d 308. . Whitsell v. Pampa Indep. School Dist., 5 Cir. 1971, 439 F.2d 1198. . As we have noted, grooming regulations are subject to the requirement that they not be wholly arbitrary. Thus, this rule of per se vnlidity would not apply to a regulation which had an arbitrary effect, as, for example, a rule requiring that all male students shave their heads. In addition, under the rule we announce today, federal courts would still be permitted to entertain an action alleging discriminatory enforcement of a grooming code. Precedent for this rule is found in the Tenth Circuit’s recent decision in Freeman v. Flake, 10 Cir. 1971, 448 F.2d 258, cert. den. 405 U.S. 1032, 92 S.Ct. 1292, 31 L.Ed.2d 489. In that case the court held that, as a matter of law, complaints “which are based on nothing more than school regulations of the length of a male student’s hair * * * are not cognizable in federal courts * • * [and] should [be] dismissed for failure to state a claim on -which relief can be granted”. See also King v. Saddleback Jr. College District, 9 Cir. 1971, 445 F.2d 932. BELL, Circuit Judge (concurring specially) : I concur in the result that this case on the facts of record does not present a substantial federal question, and that the decision of the district court should be reversed. I" }, { "docid": "4213983", "title": "", "text": "to leases. It has been earnestly and ably argued that a lease is no more commerce than insurance or manufacturing, and it is claimed, if not commerce, it cannot be interstate commerce. The diligence of the able counsel has not been rewarded by finding any authority which has determined that question, nor has the court been able to find any. In the argument many extreme illustrations were made. It is a well-settled rule that courts are slow to declare the acts of co-ordinate departments of the government void, and unless it appears beyond a reasonable doubt that the act is violative of the fundamental law of the United States the courts will uphold it. As stated by Mr. Justice Holmes in Interstate, etc., Railway Co. v. Massachusetts, 207 U. S. 79, 128 Sup. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555: “It is not enough that a statute goes to the verge of constitutional power. Wo must be able to see clearly that it goes beyond that power. In case of a real doubt a law must be sustained.” This principle of law was settled at an early date by Chief Justice Marshall in Fletcher v. Peck, 10 U. S. (6 Cranch) 87, 3 L. Ed. 162. The fact that the question has never been before the courts, or that the power has never been exercised by Congress, is no proof that the Constitution does not authorize it. As stated by Mr. justice Brewer in Re Debs, 158 U. S. 564, 591, 15 Sup. Ct. 900, 909 (39 L. Ed. 1092): “Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so it is with the grant to" }, { "docid": "7562611", "title": "", "text": "(emphasis added). See also In re U.S. ex rel. Missouri State High School, etc., 682 F.2d 147 (8th Cir.1982) (“Once a rational relationship exists, and it exists here, judicial scrutiny must cease. Whether the rule is wise or creates undue individual hardship are policy decisions better left to legislative and administrative bodies”). Lastly, because the courts “have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies,” Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963), the “abortion neutral” ASTCA is entitled to presumptive validity. It is a well-recognized principle that “The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.” Fletcher v. Peck, 10 U.S. (6 Cranch) 85, 128, 3 L.Ed. 162 (1810) (emphasis added). “ ‘Every possible presumption ... is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.’ ” Powell v. Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 32 L.Ed. 253 (1887) (quoting In re Sinking Fund Cases, 99 U.S. (9 Otto) 700, 718, 25 L.Ed. 496, 504 (1879)). See also Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1445-46, 47 L.Ed.2d 708 (1976) (Justice Rehnquist, now Chief Justice, stated that state decisions regarding social legislation are “entitled to the same sort of presumption of legislative validity as are state choices designed" }, { "docid": "8482876", "title": "", "text": "1469. Every legislative enactment is-rightly presumed to -be constitutional. Unless the judicial branch is compelled'to say the questioned enactment is clearly out of constitutional bounds, the expressed will of the legislative should be given effect. Munn v. Illinois, 1876, 94 U.S. 113, 123, 24 L.Ed. 77; Sage Stores Co. v. Kansas, 1944, 323 U.S. 32, 35, 65 S.Ct. 9, 89 L.Ed. 25. Courts will always assume that the legislative body has acted according to its honest judgment for the best interests of the slate. Florida Central & P. R. Co. v. Reynolds, 1902, 183 U.S. 471, 480, 22 S.Ct. 176, 46 L.Ed. 283; Ellis v. United States, 1907, 206 U.S. 246, 256, 27 S.Ct. 600, 51 L.Ed. 1047, 11 Ann.Cas. 589; In re Smith, 1904, 143 Cal. 368, 373, 77 P. 180, 182. When, as here, an enactment is challenged upon constitutional grounds, judicial inquiry should properly exclude questions of policy and deal solely with the single question of constitutional power-—• whether or not the measure was within the range of legislative power granted to the enacting body. It is for the legislative body, and not the courts, to determine “whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the desired result.” Chicago B. & Q. R. R. Co. v. McGuire, 1911, 219 U.S. 549, 569, 31 S.Ct. 259, 263, 55 L.Ed. 328; Block v. Hirsh, 1921, 256 U.S. 135, 158, 41 S.Ct. 458, 65 L.Ed. 865, 16 A.L.R. 165. In deciding the question of constitutional power, courts will assume the existence of a state of facts giving validity to the legislation, unless the evidence is to the contrary, or unless facts of common knowledge or other matters which may be judicially known and noticed compel otherwise. United States v. Carolene Products Co., 1938, 304 U.S. 144, 152-154, 58 S.Ct. 778, 82 L.Ed. 1234; Metropolitan Cas. Ins. Co. of New York v. Brownell, 1935, 294 U.S. 580, 585, 55 S.Ct. 538, 79 L.Ed. 1070. The circumstances giving rise to the necessity for Ordinance No. 253 are" } ]

[ { "docid": "22691808", "title": "", "text": "States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” Section 1 defines “commerce” as: \"... commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Since no transaction involving commerce appears to be involved here, we do not reach the further question whether in any event petitioner would be included in “any other class of workers” within the exceptions of § 1 of the Act. Whether the arbitrators misconstrued a contract is not open to judicial review. The Hartbridge, 62 F. 2d 72; Mutual Benefit Health & Acc. Assn. v. United Cas. Co., 142 F. 2d 390. Questions of fault or neglect are solely for the arbitrators’ consideration. James Richardson & Sons v. W. E. Hedger Transportation Corp., 98 F. 2d 55. Arbitrators are not bound by the rules of evidence. Burchett v. Marsh, 17 How. 344; Springs Cotton Mitts v. Buster Boy Suit Co., 275 App. Div. 196, 200, 88 N. Y. S. 2d 295, 298, affirmed, 300 N. Y. 586, 89 N. E. 2d 877. They may draw on their personal knowledge in making an award. American Almond Products Co. v. Consolidated Pecan Sales Co., 144 F. 2d 448; The Guldborg, 1 F. Supp. 380; Springs Cotton Mills v. Buster" } ]

[ { "docid": "23335546", "title": "", "text": "that the agreement does not come within the exclusionary language of Section 1, and that therefore Section 3 of the Act, authorizing a stay of the action, is applicable. Those cases which so hold do so either on the ground that a collective bargaining agreement is not a “contract of employment,” within the meaning of that language in Section l, or— as the Third Circuit has held in Tenney Engineering, Inc., v. United Electric, Radio & Machine Workers, 207 F.2d 450, 452-453-because, even assuming a collective bargaining agreement is a “contract of .employment” — the exclusionary clause in Section 1 applies only to “workers engaged in * * * interstate commerce”, i. e., only those actually in the transportation industries. The legislative history of the exclusionary clause in Section 1 is, at best, vague and inconclusive. The language apparently was inserted at the request of the Seamen’s Union, which felt that disputes involving the contracts of seamen came within the admiralty jurisdiction and should not be subject to arbitration. It is likely that the Union was concerned, at least in part, with its own collective bargaining agreements. Thus, to hold that such agreements are not “contracts of employment”, and hence not within the exclusionary language in Section 1, would tend to defeat what little congressional intent can be discerned concerning that language. We incline to agree with the decision and reasoning of the third Circuit in the Tenney case. This conclusion is consonant with our decisions. Although this court has never passed on the precise issue here involved, we did, in Shirley-Herman Co. v. International Hod Carriers, Bldg. & Common Laborers Union, 2 Cir., 182 F.2d 806, 809, impliedly hold that a collective bargaining agreement constituted a “contract of employment” ; and in Bernhardt v. Polygraphic Co. of America, 2 Cir., 218 F.2d 948, 951-952, reversed on other grounds 350 U.S. 198, 76 S.Ct. 273, we gave a restrictive interpretation to the term, “workers” as used in the exclusionary clause in Section 1. In view of the present, almost universal, approval of arbitration as a means for settling labor disputes," }, { "docid": "14919882", "title": "", "text": "from the FAA’s coverage. Apparently, New York state courts have not directly addressed the scope of the § 1 exclusion. However, the Second Circuit has repeatedly held that the exclusion applies only to employees actually working in the transportation industry. See Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1069 (2d Cir.1972); Signal-Stat Corp. v. Local 475, United Electrical Radio & Machine Workers of America, 235 F.2d 298 (2d Cir.1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957). This holding has been followed by courts in this circuit. See DiCrisci v. Lyndon Guar. Bank of New York, 807 F.Supp. 947 (W.D.N.Y.1992); Allendale Nursing Home, Inc. v. Local 1115 Joint Board, 377 F.Supp. 1208 (S.D.N.Y.1974). The reasoning employed in these decisions is persuasive. As the court noted in DiCris-ci, both the language and legislative history of the FAA suggest that the § 1 exclusion was not intended to embrace all employment contracts. See DiCrisci, 807 F.Supp. at 953. As a matter of statutory interpretation, “the reference to ‘seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,’ suggests that Congress intended to refer to workers engaged in commerce in the same way that seamen and railroad workers are.” Id. at 953. Moreover, the exclusion was apparently added at the prodding of the Seamen’s Union, which believed that contract disputes involving seamen fell under the admiralty jurisdiction, and should not be referable to arbitration. See Signal-Stat Corp., 235 F.2d at 302. “This suggests that the exclusion may have arisen from some relatively narrow concerns over certain classes of workers, rather than broad concerns over employment contracts generally.” DiCrisci, 807 F.Supp. at 953. These decisions indicate that the § 1 language was not intended to exclude all employment contracts from the FAA’s coverage, but only those involving employees working in the transportation industry. As Powers was not employed in this industry, his employment contract is not excluded from the FAA’s coverage. C. The Arbitration Clause As noted, the arbitration clause contained in Powers’ employment contract provides for arbitration of all disputes “arising out" }, { "docid": "11411429", "title": "", "text": "same result could be reached under the United States Arbitration Act, 9 U.S.C. §§ 1-14. Section 10(d) provides that the district court may vacate the award “where the arbitrators exceeded their powers”, and § 10(e) grants the court discretion to direct a rehearing by the arbitrators “where an award is vacated and the time within which the agreement required the award to be made has not expired . . Further, § 11 (b) authorizes the court to modify or correct the award “where the arbitrators have awarded upon a matter not submitted to them . . Some doubt as to the applicability of the Arbitration Act to disputes arising from collective bargaining agreements was created by the Supreme Court in its decisions in Textile Workers v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), and General Electric Co. v. Local 205, United Electrical Workers, 353 U.S. 547, 77 S.Ct. 921, 1 L.Ed.2d 1028 (1957). The majority opinions did not discuss the appli cability of the Act, but Justice Frankfurter in dissent regarded the majority opinions as implicitly rejecting “the availability of the Federal Arbitration Act to enforce arbitration clauses in collective bargaining agreements . . 353 U.S. at 466, 77 S.Ct. at 926. The Supreme Court has not ruled on the issue since the Lincoln Mills case, however, and the courts of appeals have charted an uneven path. One immediate difficulty is created by the Act’s injunction that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Most of the appellate courts which have dealt with this issue have limited this provision to those cases where the union or the employer is actually engaged in the transportation industry. See, e. g., Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. General Electric Co., 2 Cir. 1969, 406 F.2d 1046. At least three circuits, the Second, Sixth and Seventh, have expressly held the Act applicable to suits involving the arbitration of collective bargaining disputes. See Bell Aerospace" }, { "docid": "8121437", "title": "", "text": "breach of a no-strike clause, the court described the arbitration clause as broad and held that the union, which had denied responsibility for a strike, was entitled to a stay of action pending arbitration because of the arbitration clause. We must reject Company’s contrary contentions, and our examination of authorities relied upon by it has not persuaded us that they give adequate support to its argument. We hold, therefore, that the broad language of the bargaining agreement requires arbitration of the dispute in question. Section 1 of the United States Arbitration Act, 9 U.S.C.A., provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Obviously, if this section applies to collective bargaining agreements generally, the district court was not required to order a stay of proceedings pending arbitration as set out in the agreement. See 9 U.S.C.A. § 3. Company asserts that the collective bargaining agreement is a “contract of employment” within the meaning of Section 1 of the Arbitration Act and that the provisions of such Act are inapplicable to the parties in this case. This issue was decided adversely to Company’s contention by the Second Circuit in Signal-Stat. Corp. v. Local 475, United Elec., Radio and Machine Workers, 235 F.2d 298 (1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957). This decision adopted the view of the Third Circuit in Tenney Engineering, Inc. v. United Elec., Radio & Machine Workers of America, Local 437, 207 F.2d 450 (1953), the latter case holding that the exclusion related only to workers engaged in the movement of interstate or foreign commerce and that Congress did not intend it to apply to collective bargaining agreements such as are involved in the instant proceeding. We agree with the Second Circuit that this interpretation “accords both with the modern trend and with what we deem to be the intention of Congress.” 235 F.2d at 303. In Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972" }, { "docid": "14963995", "title": "", "text": "a transaction involving commerce ...” The Court held that the limitation of the FAA to contracts “involving commerce” was meant to make the Act applicable in state as well as federal courts. Had Congress intended the Act to apply only in federal courts, the Court reasoned, the “involving commerce” limitation would be “an inexplicable limitation on the power of the federal courts ...” Id. at 14-15, 104 S.Ct. at 860. Given the different issues presented in Southland Corp., then, I do not read the Court’s holding as affecting the continued validity in this Circuit of earlier Second Circuit cases holding that the § 1 exclusion is limited to workers literally involved in commerce. In Signal-Stat Corp. v. Local 475, 235 F.2d 298 (2d Cir.1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957), the court held that “the exclusionary clause in Section 1 applies only to ... those actually in the transportation industries.” Id. at 302. The court said that the employees in Signal-Stat, who worked for a manufacturer of automotive electrical equipment, “[wejre not actually engaged in interstate and foreign commerce,” but “[wejre merely engaged in the manufacture of goods for interstate commerce,” and that therefore their collective bargaining agreement did not fall w/in the exclusion. Id. at 303. The Court of Appeals reaffirmed this view in Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 (2d Cir.1972), stating that § 1 is limited “to employees involved in, or closely related to the actual movement of goods in interstate commerce.” Id. at 1069. The court held that a professional basketball player “clearly [wajs not involved in the transportation industry” and therefore affirmed an order staying the player’s action to rescind his contract pending arbitration. The court said that “[ijn light of the strong national policy in favor of arbitration as a means of settling private disputes we see no reason to give an expansive interpretation to the exclusionary language of Section 1 by reex amining our decision in Signal-Stat ...” Id. An analysis of the Act also supports the conclusion that § 1 refers to actual" }, { "docid": "23335548", "title": "", "text": "in- eluding the express approval of Congress, we think the courts should interpret the United States Arbitration Act so as to further, rather than impede, arbitration in this area. We think the interpretation of the Third Circuit in Tenney accords both with the modern trend and with what we deem to be the intention of Congress. The plaintiff’s employees are not “engaged in * * * commerce,” that is, they are not actually engaged in interstate and foreign commerce. They are merely engaged in the manufacture of goods for interstate commerce. Therefore, the collective bargaining agreement here does not come within the exclusionary clause of Section 1. The decision of the district court is reversed and the cause is remanded for proceedings in conformity with this opinion. . United Electric, Radio & Machine Workers v. Miller Metal Products, 4 Cir., 215 F. 2d 221; International Union United Furniture Workers v. Colonial Hardwood Flooring Co., 4 Cir., 168 F.2d 33, 35; Square D Co. v. United Electric, Radio & Machine Workers, D.C., 123 F.Supp. 776. . See, e. g., Textile Workers Union v. American Thread Co., D.C.D.Mass., 113 F. Supp. 137; Wilson Bros. v. Textile Workers Union, D.C.S.D.N.Y., 132 F. Supp. 163, 165; The Evening Star Newspaper Co. v. Columbia Typographical Union, D.C.D.C., 124 F.Supp. 322, 323; Local 207, etc., v. Landers, Frary & Clark, D.C.Conn., 119 F.Supp. 877, 879. Contra, Lincoln Mills of Alabama v. Textile Workers Union, 5 Cir., 230 F.2d 81, 87-88; Local 205, United Electrical, Radio and Machine Workers v. General Electric Company, 1 Cir., 233 F.2d 85. . See Bernhardt v. Polygraphic Co., 350 U.S. 198, 200-201, 76 S.Ct. 273; Local 205, United Electrical, Radio and Machine Workers v. General Electric Company, 1 Cir., 233 F.2d 85; Sturges & Murphy, Some Confusing Matters Relating to Arbitration Under the United States Arbitration Act, 17 Law and Contem. Probs. 580, 617-19 (1952); Cox, Grievance Arbitration in the Federal Courts, 67 Harv.L.Rev. 591, 598-599 (1954). . The cases which so hold rely primarily on language in J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 334-336," }, { "docid": "8121438", "title": "", "text": "the Arbitration Act and that the provisions of such Act are inapplicable to the parties in this case. This issue was decided adversely to Company’s contention by the Second Circuit in Signal-Stat. Corp. v. Local 475, United Elec., Radio and Machine Workers, 235 F.2d 298 (1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957). This decision adopted the view of the Third Circuit in Tenney Engineering, Inc. v. United Elec., Radio & Machine Workers of America, Local 437, 207 F.2d 450 (1953), the latter case holding that the exclusion related only to workers engaged in the movement of interstate or foreign commerce and that Congress did not intend it to apply to collective bargaining agreements such as are involved in the instant proceeding. We agree with the Second Circuit that this interpretation “accords both with the modern trend and with what we deem to be the intention of Congress.” 235 F.2d at 303. In Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the Supreme Court, with Mr. Justice Frankfurter dissenting on this question, among others, 353 U.S. at 467, 77 S.Ct. at 926, reversed and ordered arbitration without noting Section 1 of the Arbitration Act, although the court of appeals discussed it and held that a collective bargaining agreement was a “contract of employment” within the meaning of the section. Lincoln Mills of Alabama v. Textile Workers Union, 5 Cir., 230 F.2d 81 (1956). Moreover, in Drake Bakeries, supra, a case brought under Section 3 of the Arbitration Act, the Supreme Court took no notice of Section 1 of the Act. We think it is well established, therefore, that the terms “foreign or interstate commerce,” as used in the exemption, were not intended to apply to collective bargaining agreements similar to the one before us in the instant case. We so hold. We find no merit in Company’s contention that Union was in default in proceeding to arbitration and that it should be barred from applying for a stay. Finally, Company asserts that Union’s denial of" }, { "docid": "14963994", "title": "", "text": "that “[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Although plaintiffs initial papers in response to defendant’s motion did not discuss the possible applicability of this section to the arbitration agreement in this case, it was discussed at oral argument, and, in response to the court’s request, the parties have briefed the issue. Having reviewed the supplemental briefs, the statute, and the case law on the subject, I conclude that the contract in this case does not fall within the exclusion for certain types of employment contracts. In short, the parties’ contract does not involve “workers engaged in foreign or interstate commerce.” I note initially that there is no clear Supreme Court authority on this point. In Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984), the Court discussed the meaning of “commerce” in § 2 of the Act, which makes enforceable any arbitration “provision in any maritime transaction or a contract evidencing a transaction involving commerce ...” The Court held that the limitation of the FAA to contracts “involving commerce” was meant to make the Act applicable in state as well as federal courts. Had Congress intended the Act to apply only in federal courts, the Court reasoned, the “involving commerce” limitation would be “an inexplicable limitation on the power of the federal courts ...” Id. at 14-15, 104 S.Ct. at 860. Given the different issues presented in Southland Corp., then, I do not read the Court’s holding as affecting the continued validity in this Circuit of earlier Second Circuit cases holding that the § 1 exclusion is limited to workers literally involved in commerce. In Signal-Stat Corp. v. Local 475, 235 F.2d 298 (2d Cir.1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957), the court held that “the exclusionary clause in Section 1 applies only to ... those actually in the transportation industries.” Id. at 302. The court said that the employees in Signal-Stat, who worked for a manufacturer of automotive electrical" }, { "docid": "13934275", "title": "", "text": "meaning of a contract in an “industry affecting commerce” as used in Section 301 of the Labor Management Relations Act of 1947, but that such a contract is not one of “ ‘employment of * * * workers engaged in foreign or interstate commerce’ ” within the exclusion clause of Section 1 of the Arbitration Act. A majority of the court reconciled the decision with the prior holdings by saying that the two Pennsylvania Greyhound Lines cases involved employees engaged in interstate transportation, excluded by Section 1, and that the other earlier cases involved employees producing goods for subsequent resale in commerce, and not covered, said the court, by the exclusion clause. Two of the judges thought that collective bargaining agreements were not “contracts of employment” within the purview of Section 1 of the Arbitration Act, and were of the belief that the Pennsylvania Greyhound Lines cases should be expressly overruled. Two judges dissented. The court directed the granting of a stay pending arbitration. Tenney Engineering, Inc., v. United Electrical R. & M. Workers, 3 Cir., 1953, 207 F.2d 450, 451. The Fourth Circuit departs from the Third Circuit and has held that the Arbitration Act does not authorize enforcement of arbitration provisions in collective bargaining agreements. Speaking for the Court and referring to Section 1 of the Arbitration Act, Chief Judge Parker has said: “Art. I of that Act of February 12, 1925, c. 213, as reenacted by the Act of July 30, 1947, c. 392, 9 U.S.C.A. § 1, contains nothing but definitions of ‘maritime transactions’ and ‘commerce’ and an excepting clause; and we think it clear that the excepting clause was intended to apply to the entire act.” International Union, etc., v. Colonial Hardwood Floor Co., 4 Cir., 1948, 168 F.2d 33, 35. The Colonial Hardwood case was followed in United Electrical R. & M. Workers v. Miller Metal Products, 4 Cir., 1954, 215 F.2d 221. It seems to us that the Sixth Circuit originally reached the same conclusion as had been pronounced in the Fourth. In a well reasoned opinion by Judge Hamilton wherein the first" }, { "docid": "23335544", "title": "", "text": "to the provisions of Paragraph 18 of the agreement with respect to “the matter of the quitting employment by the members of the union, with the knowledge, consent all(t direction of the union.” 4. There remains the question whether the Union is entitled to a stay 0f the action pending arbitration under Section 3 of the United States Arbitration Act or under Section 301 of the TaftHartley Act. Since we decide that Seetion 3 0f the Arbitration Act is applicable to this agreement and authorizes a stay of the proceedings, we do not reach, and need not decide, whether the arbitration agreement is enforceable under Section 301 of the Taft-Hartley Act, as some courts have held. The Supreme Court, in strong dictum, has recently stated that Section 3 of the Arbitration Act is limited by Sections 1 and 2; Bernhardt v. Polygraphic Co., 350 U.S. 198, 201—202, 76 S.Ct. 273. We think the collective bargaining agreement in this case is a “contract evidencing a transaction involving commerce” within the meaning of Section 2 of the Act. We also think that the last clause in Section 1 of the Act, which excludes certain contracts from the Act, is not applicable to this agreement. That clause provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees,. or any other class of workers engaged in foreign or interstate commerce.” \" The Supreme Court has not yet interpreted the exclusionary clause in Section 1, and the decisions of the lower federal courts are in irreconcilable conflict. The decisions of the various circuits are-discussed and reviewed in Lincoln Mills of Alabama v. Textile Workers Union, 5 Cir., 230 F.2d 81, 85-86 and in Local 205, United Electrical, Radio and Machine Workers v. General Electric Company, 1 Cir., 233 F.2d 85. We will not repeat their labor here. Suffice it to say that the Fourth, Fifth and perhaps the Tenth Circuits would hold that the instant agreement comes within the exclusionary clause in Section 1 and, hence, that the Arbitration Act is inapplicable. The First, Third and Sixth Circuits would hold" }, { "docid": "22987157", "title": "", "text": "“contracts of employment of ... workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1, is inapplicable; it has been, held to be limited to workers employed in the transportation industries. See Pietro Scalzitti Co. v. International Union of Operating Engineers, 351 F.2d 576, 579-80 (7th Cir.1965); Signal-Stat Corp. v. Local 475, United Electrical, Radio & Machine Workers of America, 235 F.2d 298, 301-03 (2d Cir.1956); Tenney Engineering Inc. v. United Electrical Radio & Machine Workers of America, (U.E.) Local 437, 207 F.2d 450 (3d Cir.1953) (en banc). But section 301 was enacted long after the Arbitration Act and deals specifically, as the Arbitration Act does not, with labor contracts; it therefore supersedes, within its domain, the standards of the earlier act. Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 312 n. 3 (7th Cir. 1981). Miller’s first ground for attacking the arbitrator’s award is that it does not “draw its essence” from the collective bargaining agreement. This somewhat curious, but canonical, see, e.g., W.R. Grace & Co. v. Local Union 759, Int’l Union of Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983), wording derives from the statement in United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960), that an arbitrator’s award under a collective bargaining agreement “is legitimate only so long as it draws its essence from the collective bargaining agreement.” The surrounding language makes clear that what is meant is that the award is valid provided it is an attempt to interpret the collective bargaining agreement rather than to apply .the arbitrator’s own ideas of right and wrong: “an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse" }, { "docid": "22987156", "title": "", "text": "a result of the shutdown agreement with the union. He therefore concluded that Miller had violated the collective bargaining agreement in failing to give Pearson preference. He ordered Miller “to hire Gene Pearson ... and any other employees similarly situated who had applications on file at the Company and who were not given hiring preference over temporary Miller employees____” The union sought enforcement of the arbitrator’s award under both the Arbitration Act, which has its own standards for the validity of arbitration awards, see 9 U.S.C. § 11, and section 301 of the TaftHartley Act, which is the source of federal common law principles governing the validity of labor arbitration awards. But the parties quite properly make- no separate point about the Arbitration Act’s standards. We may assume that a multi-employer collective bargaining agreement with Milwaukee brewery workers sufficiently involves interstate commerce to come within the reach of 9 U.S.C. § 2, which we construed broadly just the other day in Snyder v. Smith, 736 F.2d 409, 417-18 (7th Cir.1984). And the Act’s exclusion of “contracts of employment of ... workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1, is inapplicable; it has been, held to be limited to workers employed in the transportation industries. See Pietro Scalzitti Co. v. International Union of Operating Engineers, 351 F.2d 576, 579-80 (7th Cir.1965); Signal-Stat Corp. v. Local 475, United Electrical, Radio & Machine Workers of America, 235 F.2d 298, 301-03 (2d Cir.1956); Tenney Engineering Inc. v. United Electrical Radio & Machine Workers of America, (U.E.) Local 437, 207 F.2d 450 (3d Cir.1953) (en banc). But section 301 was enacted long after the Arbitration Act and deals specifically, as the Arbitration Act does not, with labor contracts; it therefore supersedes, within its domain, the standards of the earlier act. Shearson Hayden Stone, Inc. v. Liang, 653 F.2d 310, 312 n. 3 (7th Cir. 1981). Miller’s first ground for attacking the arbitrator’s award is that it does not “draw its essence” from the collective bargaining agreement. This somewhat curious, but canonical, see, e.g., W.R. Grace & Co. v. Local Union 759, Int’l" }, { "docid": "22910359", "title": "", "text": "personal services of entertainers were matters of state law not the subject of interstate commerce. The Supreme Court made clear as long ago as United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955), and United States v. International Boxing Club, 348 U.S. 236, 75 S.Ct. 259, 99 L.Ed. 290 (1955), that Federal Base Ball did not apply to any form of interstate exhibition other than baseball. Two years later, Radovich v. National Football League, 352 U.S. 445, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957), held that a contract between a professional football player and his club was a subject of interstate commerce within the antitrust laws. At the last term the Court observed that Federal Base Ball and its successor, Toolson v. New York Yankees, Inc., 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64 (1953), “have become an aberration confined to baseball,” Flood v. Kuhn, 407 U.S. 258, 282, 92 S.Ct. 2099, 2112, 32 L.Ed.2d 728 (1972). San Carlo Opera Co. cannot properly be given a wider application than the underpinning on which it rested. Besides, its holding that a contract of personal service with a business engaged in interstate commerce is not within the Arbitration Act appears to be inconsistent with Prima Paint, supra, 388 U.S. at 401 and footnote 7, 87 S.Ct. 1801. In addition appellant suggests that his case comes within the exclusionary language of 9 U.S.C., Section 1 that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In light of this Court’s decision in Signal-Stat Corp. v. Local 475, United Electrical Radio & Machine Workers, 235 F.2d 298 (1956), cert. den. 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428, reh’g den. 355 U.S. 852, 78 S.Ct. 7, 2 L.Ed.2d 61 (1957), this argument must fail. There this Court held that the exclusionary clause in Section 1 applied only to those actually in the transportation industry. Erving clearly is not involved in the transportation industry. The decision in Signal-Stat, supra, was recently followed" }, { "docid": "22833976", "title": "", "text": "district judge denied the motion. No opinion appears in the record. Avnet appeals the denial of the motion to compel. This court reviews the district court’s ruling de novo because it is a matter of law. See Kotam Elecs., Inc. v. JBL Consumer Prods., Inc., 93 F.3d 724, 725 (11th Cir.1996) (en banc), cert. denied, —— U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997). 2. Discussion a. Applicability of the Federal Arbitration Act The FAA governs Avnet’s motion. The FAA’s provisions concerning the validity of arbitration clauses reach to the edge of Congress’s power under the Commerce Clause. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270, 115 S.Ct. 834, 838, 130 L.Ed.2d 753 (1995). No one disputes that Avnet is engaged in interstate commerce. Furthermore, the appearance of the arbitration clause in an employment contract does not exempt the clause from the FAA under that Act’s first section. All but one of the other circuits to have addressed the issue have held that the FAA § l’s exemption of “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” 9 U.S.C. § 1, includes only employees actually engaged in transportation of goods in commerce. See Cole v. Burns Int’l Security Servs., 105 F.3d 1465, 1470 (D.C.Cir.1997); Rojas v. TK Communications, Inc., 87 F.3d 745, 748 (5th Cir.1996); Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, 598 (6th Cir.1995); Dickstein v. duPont, 443 F.2d 783, 785 (1st Cir.1971); Pietro Scalzitti Co. v. International Union of Operating Eng’rs, 351 F.2d 576, 579-80 (7th Cir.1965); Signal-Stat Corp. v. Local 475, United Elec. Radio & Machine Workers, 235 F.2d 298, 302-03 (2d Cir.1956); Tenney Eng’g, Inc. v. United Elec. Radio & Machine Workers, Local 437, 207 F.2d 450, 453 (3d Cir.1953) (en banc). This construction accords with the statute’s text and history. See Cole, 105 F.3d at 1470-71. Although the district court may not have addressed this issue (we have no opinion in the record to tell us), the issue is presented in this case, and we join these other circuits." }, { "docid": "22910360", "title": "", "text": "the underpinning on which it rested. Besides, its holding that a contract of personal service with a business engaged in interstate commerce is not within the Arbitration Act appears to be inconsistent with Prima Paint, supra, 388 U.S. at 401 and footnote 7, 87 S.Ct. 1801. In addition appellant suggests that his case comes within the exclusionary language of 9 U.S.C., Section 1 that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In light of this Court’s decision in Signal-Stat Corp. v. Local 475, United Electrical Radio & Machine Workers, 235 F.2d 298 (1956), cert. den. 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428, reh’g den. 355 U.S. 852, 78 S.Ct. 7, 2 L.Ed.2d 61 (1957), this argument must fail. There this Court held that the exclusionary clause in Section 1 applied only to those actually in the transportation industry. Erving clearly is not involved in the transportation industry. The decision in Signal-Stat, supra, was recently followed in Dickstein v. duPont, 443 F.2d 783 (1st Cir. 1971) where the court observed that other courts generally limit the exception in 9 U.S.C.,. Section 1 to employees involved in, or closely related to the actual movement of goods in interstate commerce. Our interpretation of the exception clause followed that of the Third Circuit in Tenney Engineering Inc. v. United Electrical Radio & Machine Workers, Local 437, 207 F.2d 450 (1953). In light of the strong national policy in favor of arbitration as a means of settling private disputes we see no reason to give an expansive interpretation to the exclusionary language of Section 1 by reexamining our decision in Signal-Stat, supra. Affirmed. . “13. Arbitration. In the event of any dispute arising between the PLAYER and the CLUB relating to any matter or thing whatever, whether or not arising under this Contract, or concerning the performance or interpretation thereof, such dispute shall be determined by arbitration before the Commissioner of the American Basketball Association, or a person designated by such Commissioner in writing for" }, { "docid": "8120429", "title": "", "text": "1 of Title 9 which reads “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” “Contracts of employment” to which this clause refers include collective bargaining agreements, and the clause is a limitation upon the operation of all sections of Title 9. The answer to the question accordingly turns upon whether the plaintiff’s employees are to be regarded as a “class of workers engaged in foreign or interstate commerce” within the meaning of the exclusionary clause. The problem, therefore, is to ascertain the meaning which Congress intended to give to the phrase “workers engaged in foreign or interstate commerce”. The question here was squarely presented and decided by the Circuit Court of Appeals for the Third Circuit in Tenney Engineering, Inc., v. United Electrical Radio & Machine Workers of America, (U.E.), Local 437, 3 Cir., 1953, 207 F.2d 450, 452, where that Court, speaking through Judge Maris, said: “We think that the intent of the latter language was, under the rule of ejusdem generis, to include only those other classes of workers who are likewise engaged directly in commerce, that is, only those other classes of workers who are actually engaged in the movement of interstate or foreign commerce or in work so closely related thereto as to be in practical effect part of it. The draftsmen had in mind the two groups of transportation workers as to which special arbitration legislation already existed and they rounded out the exclusionary clause by excluding all other similar classes of workers.” In this case the plaintiff’s employees are engaged in the production of goods for subsequent sale in interstate commerce. Thus while their activities will undoubtedly affect interstate commerce they are not acting directly in the channels of commerce itself. They are, therefore, not a “class of workers engaged in foreign or interstate commerce” within the meaning of Section 1 of Title 9. The collective bargaining agreement here involved, not being excluded by Section 1, is within the purview of Section 3 of Title 9. The" }, { "docid": "8120428", "title": "", "text": "WATSON, Chief Judge. The plaintiff, a manufacturing corporation, brought this action under Section 301 of the Labor Management Relations Act 1947, 29 U.S.C.A. § 185, commonly called the Taft-Hartley Act, against the defendant labor unions for damages for breach of contract. The breach alleged was a strike of the plaintiff’s employees called by the defendants in violation of a collective bargaining agreement between the parties. The agreement contained an arbitration clause and the defendants moved for a stay of the suit pending arbitration, pursuant to Section 3 of Title 9, United States Code, entitled “Arbitration”. The plaintiff filed an answer in opposition to the defendants’ motion for stay pending arbitration. Briefs were duly filed by all parties to the litigation, and the matter is now before the Court for disposition. The first question presented is whether Section 3 of Title 9 is applicable to a collective bargaining agreement between parties in the situation of those in this action. The answer to this question in turn depends upon the interpretation of the final clause of Section 1 of Title 9 which reads “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” “Contracts of employment” to which this clause refers include collective bargaining agreements, and the clause is a limitation upon the operation of all sections of Title 9. The answer to the question accordingly turns upon whether the plaintiff’s employees are to be regarded as a “class of workers engaged in foreign or interstate commerce” within the meaning of the exclusionary clause. The problem, therefore, is to ascertain the meaning which Congress intended to give to the phrase “workers engaged in foreign or interstate commerce”. The question here was squarely presented and decided by the Circuit Court of Appeals for the Third Circuit in Tenney Engineering, Inc., v. United Electrical Radio & Machine Workers of America, (U.E.), Local 437, 3 Cir., 1953, 207 F.2d 450, 452, where that Court, speaking through Judge Maris, said: “We think that the intent of the latter language was, under" }, { "docid": "13934274", "title": "", "text": "consideration of the question by the Third Circuit, Congress had reenacted the United States Arbitration Act and had included in the reenactment the following catch line of Section 1, “ ‘Maritime Transactions’ and ‘Commerce’ Defined; Exceptions to Operation of Title”. Act of July 30, 1947, H.R. 2084, ch. 392, 61 Stat. 669. This, thought the court, in the next case before it, indicated a congressional intent that the exclusion in Section 1 applied to the entire Act, and it was held that collective bargaining agreements were “contracts of employment” within the meaning of the Act. Amalgamated Ass’n, etc. v. Pennsylvania Greyhound Lines, 3 Cir., 1951, 192 F.2d 310. This was followed in Pennsylvania Greyhound Lines v. Amalgamated Ass’n, 3 Cir., 1951, 193 F.2d 327. In the most recent of the Third Circuit cases which we have noted, it was said by a divided court that a collective bargaining agreement between an employer producing goods for subsequent sale in interstate commerce, as is the employer in the case before us, and a union, is within the meaning of a contract in an “industry affecting commerce” as used in Section 301 of the Labor Management Relations Act of 1947, but that such a contract is not one of “ ‘employment of * * * workers engaged in foreign or interstate commerce’ ” within the exclusion clause of Section 1 of the Arbitration Act. A majority of the court reconciled the decision with the prior holdings by saying that the two Pennsylvania Greyhound Lines cases involved employees engaged in interstate transportation, excluded by Section 1, and that the other earlier cases involved employees producing goods for subsequent resale in commerce, and not covered, said the court, by the exclusion clause. Two of the judges thought that collective bargaining agreements were not “contracts of employment” within the purview of Section 1 of the Arbitration Act, and were of the belief that the Pennsylvania Greyhound Lines cases should be expressly overruled. Two judges dissented. The court directed the granting of a stay pending arbitration. Tenney Engineering, Inc., v. United Electrical R. & M. Workers, 3" }, { "docid": "11411430", "title": "", "text": "regarded the majority opinions as implicitly rejecting “the availability of the Federal Arbitration Act to enforce arbitration clauses in collective bargaining agreements . . 353 U.S. at 466, 77 S.Ct. at 926. The Supreme Court has not ruled on the issue since the Lincoln Mills case, however, and the courts of appeals have charted an uneven path. One immediate difficulty is created by the Act’s injunction that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Most of the appellate courts which have dealt with this issue have limited this provision to those cases where the union or the employer is actually engaged in the transportation industry. See, e. g., Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. General Electric Co., 2 Cir. 1969, 406 F.2d 1046. At least three circuits, the Second, Sixth and Seventh, have expressly held the Act applicable to suits involving the arbitration of collective bargaining disputes. See Bell Aerospace Co. Division of Tex-tron, Inc. v. Local 516, UAW, 2 Cir. 1974, 500 F.2d 921, 923; Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. General Electric Co., supra; American Broadcasting Companies, Inc. v. American Federation of Television and Radio Artists, 412 F.Supp. 1077 (S.D.N.Y.1976); Makress Lingerie, Inc. v. Int’l Ladies Garment Workers' Union, 395 F.Supp. 110 (S.D.N.Y.1975); Chattanooga Mailers v. Chattanooga News-Free Press, 6 Cir. 1975, 524 F.2d 1305; Pietro Scalzitti Co. v. Int’l Union of Operating Engineers, Local No. 150, 7 Cir. 1965, 351 F.2d 576. At least three other circuits, including this Circuit, have recently held the Act applicable to disputes concerning the employment contracts of brokers and their brokerage firms. See Dickstein v. duPont, 1 Cir. 1971, 443 F.2d 783; Tullis v. Kohlmeyer & Co., 5 Cir. 1977, 551 F.2d 632; Legg, Mason & Co., Inc. v. Mackall & Coe, Inc., 351 F.Supp. 1367 (D.D.C.1972). The Third Circuit seems to have developed a conflict on the issue. Compare Newark Stereotypers’ Union No. 18 v. Newark Morning Ledger Co., 3 Cir., 397" }, { "docid": "23335545", "title": "", "text": "Act. We also think that the last clause in Section 1 of the Act, which excludes certain contracts from the Act, is not applicable to this agreement. That clause provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees,. or any other class of workers engaged in foreign or interstate commerce.” \" The Supreme Court has not yet interpreted the exclusionary clause in Section 1, and the decisions of the lower federal courts are in irreconcilable conflict. The decisions of the various circuits are-discussed and reviewed in Lincoln Mills of Alabama v. Textile Workers Union, 5 Cir., 230 F.2d 81, 85-86 and in Local 205, United Electrical, Radio and Machine Workers v. General Electric Company, 1 Cir., 233 F.2d 85. We will not repeat their labor here. Suffice it to say that the Fourth, Fifth and perhaps the Tenth Circuits would hold that the instant agreement comes within the exclusionary clause in Section 1 and, hence, that the Arbitration Act is inapplicable. The First, Third and Sixth Circuits would hold that the agreement does not come within the exclusionary language of Section 1, and that therefore Section 3 of the Act, authorizing a stay of the action, is applicable. Those cases which so hold do so either on the ground that a collective bargaining agreement is not a “contract of employment,” within the meaning of that language in Section l, or— as the Third Circuit has held in Tenney Engineering, Inc., v. United Electric, Radio & Machine Workers, 207 F.2d 450, 452-453-because, even assuming a collective bargaining agreement is a “contract of .employment” — the exclusionary clause in Section 1 applies only to “workers engaged in * * * interstate commerce”, i. e., only those actually in the transportation industries. The legislative history of the exclusionary clause in Section 1 is, at best, vague and inconclusive. The language apparently was inserted at the request of the Seamen’s Union, which felt that disputes involving the contracts of seamen came within the admiralty jurisdiction and should not be subject to arbitration. It is likely that the Union" } ]

[ { "docid": "22774529", "title": "", "text": "is indirect and incidental, and ‘the Constitution of the United States does not secure to any one the privilege of defrauding the public.’” It cannot be doubted that, within the principle of these decisions, and of the others above cited, the State of Indiana — assuming for the present that there was no conflict with Federal legislation — was entitled, in the exercise of its police power, to require the disclosure of the ingredients contained in the feeding stuffs offered for sale in the State, and to provide for' their inspection and analysis. The provisions for the filing of a certificate, for registration and for labels, were merely incidental to these requirements and were appropriate means for accomplishing the legitimate purpose of the act. It is said that the statute permits the State, through its officials, to set up arbitrary standards governing conditions of manufacture. But it does not appear that any arbitrary standard has been set up, or that there has been any attempt to enforce one against the complainant. (See Western Union Telegraph Co. v. Richmond, 224 U. S. 160, 168.) The complainant has declined to file the statément and to affix the labels containing the disclosure of ingredients for which the statute provides, and instead he resorts to this suit. The contention is made that the statute is a disguised revenue measure, but on a review of its provisions we fihd no warrant for such- a characterization of -it. The bill sets forth no facts whatever tí) show that.the charge for stamps is unreasonable in its relation to the cost of inspec tion, and certainly it cannot be said that aught appears “to justify the imputation of bad faith and change the character of the act.” Patapsco Guano Co. v. North Carolina, supra; McLean v. Denver & Rio Grande R. R. Co., supra; Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393. With respect to the requirement of an advance payment for stamps, to the valúe of five dollars, to accompany the certificate, we need not say more than that the complainant is plainly" } ]

[ { "docid": "502769", "title": "", "text": "vaccination was deleterious was held properly to have been excluded. Jacobson v. Massachusetts, 197 U. S. 11 [25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765]; s. c., 183 Mass. 242 [66 N. E. 719, 67 L. R. A. 935]. See Otis v. Parker, 187 U. S. 606, 608, 609 [23 Sup. Ct. 168, 47 L. Ed. 323].” In Red “C” Oil Co. v. North Carolina, 222 U. S. 392, 32 Sup. Ct. 154, 56 L. Ed. 240, the court had before it a state statute requiring the inspection of kerosene and other illuminating oils, and fixing a fee of one-half cent per gallon to be paid to the Commissioner of Agriculture for the purpose of defraying expenses connected with the inspecting, testing, and analyzing of the oil. The oil company filed its bill against the State Board of Agriculture to restrain enforcement of the statute, charging an abuse of the police power. The court quoted approvingly the language of the trial judge, where he says: “While there is much diversity of opinion in respect to the danger of explosion from the use of kerosene oil and of the power to ascertain its illuminating capacity, it is evident that the question has not so far passed beyond the domain of debate, that the Legislature may not subject it to reasonable in-' spection before permitting the sale in the state. The court cannot say that such a law has no reasonable relation to the public safety or welfare.” In State v. Layton, 160 Mo. 474, 61 S. W. 171, 62 L. R. A. 163, 83 Am. St. Rep. 487, wherein was involved the right of the state to prohibit the use of alum in baking powder, the court says: “What, then, is the test when the constitutionality of an act of the Legislature is assailed as invading the right of the citizen to use his faculties in the production of an article for sale for food or drink? We answer that if it be an article so universally conceded to be wholesome and innocuous that the court may" }, { "docid": "15293380", "title": "", "text": "that, as the answer denied the material allegations of the complaint concerning the operative effect of the act, the plaintiff had the burden of proof, which it failed to sustain; and, if the burden was shifted by the case made by the plaintiff, the evidence preponderated in favor of the defendant. First. The statute does not exhibit a failure reasonably to adjust the fee to the expense of the supervision and regulation of railroads. The legislation is to be accorded the presumption of fairness and regularity. It cannot be deduced from the provisions of the act that the amounts collected from the railroads grossly exceed those legitimately expended for inspection and regulation. The ap pellant insists that such is the necessary inference from the circumstance that the same fee is exacted from public utilities generally, and the collections go into a single fund and are indiscriminately disbursed for the many branches of the department’s work. But these facts, without more, do not prove that the amounts derived from the railroads are in excess of the legitimate expenses of inspection and regulation. It may be that, in spite of this lumping of receipts and expenditures, the fees paid by the railroads are no more than enough to defray such expenses. The court below was, therefore, justified in refusing to hold the statute void on its face. Second. The court thought the plaintiff had the burden of showing that the sums exacted from rail carriers substantially exceeded the amounts expended for regulation and supervision, and the proofs offered were insufficient to shift the burden to the defendant. This view was erroneous. Foote & Co. v. Stanley, 232 U. S. 494. In that case it appeared that the plaintiffs were packers of oysters taken from the waters of Maryland, Virginia, and New Jersey, and shipped to Baltimore. A statute of Maryland required that the oysters be inspected at Baltimore. It imposed a charge of one cent a bushel “to help defray the expenses of such inspection and the other expenses of the State Fishery Force, upon all oysters unloaded from vessels at the" }, { "docid": "23232961", "title": "", "text": "the exaction of the fee of one hundred dollars. 1. With respect to the first question the case in its essential features is .not to be distinguished from that of Savage v. Jones, decided June 7, 1912, ante, p. 501, and nothing need be added to what was there said. It was competent for the State, in the exercise of its power to prevent imposition upon the public, to require the disclosure to which objection is made. The provision was not an unreasonable one and the effect upon interstate commerce was incidental only. Plumley v. Massachusetts, 155 U. S. 461; Hennington v. Georgia, 163 U. S. 299, 317; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Heath & Milligan Manufacturing Co. v. Worst, 207 U. S. 338; Asbell v. Kansas, 209 U. S. 251, 254, 256. Nor is there any conflict with the Food and Drugs Act of June 30, 1906, c. 3915, 34 Stat. 768; Savage v. Jones, supra. 2. The statute provides for inspection and analysis. Under § 6, it is the duty of the State Food and Dairy Commissioner to “cause to be made analyses of all concentrated commercial feeding-stuffs and agricultural seeds sold or offered for sale in this State.” For this purpose, that officer is authorized “in person or by deputy, to take for analysis a sample from any lot or package of concentrated commercial feeding-stuffs in this State,” and further provision is made to assure the representative character of the sample. The results of the analyses are to be published from time to time in official bulletins. The State Food and Dairy Commissioner is required to enforce the statute and to this end is authorized to appoint, with the approval of the executive council, such analysts and chemists as may be necessary, to carry it into effect. Violation of any of the provisions of the act is made a misdemeanor. We are of opinion that" }, { "docid": "15299751", "title": "", "text": "in Puerto Bieo and provided that straps or stamps of the value of 3 cents should be attached to containers of such coffee holding from twenty-five to one hundred pounds, and straps or stamps of the value of 5 cents to containers of such coffee holding from one to two hundred pounds; and the proceeds derived from the sale of the sirups or stamps provided for under the act were to be “devoted to the payment of such expenses as may arise by reason of the application of this Act.” The act of 1925 is undoubtedly the law the enforcement of which was contemplated by section 23 providing for the expenditure of the funds raised under the act of 1928. In Foote & Co. v. Maryland, 232 U. S. 494, 34 S. Ct. 377, 379, 58 L. Ed. 698, the Supreme Court had under consideration the validity of an oyster inspection law which provided “for an inspection fee of 1 cent per bushel to bo ‘levied to help pay the salary of the inspectors and the other expenses of the State Fishery Foi*ee.’ ” Besides inspection the Fishery Force had other duties imposed upon it by the act. “That organization * * * [was] supplied with men and boats, and required to patrol, day and night, the waters of Chesapeake bay to prevent unlicensed boats from taking oysters [and all boats] from improper tonging or dredging, and to see that shells and culls * * * [were] returned to the natural beds, — provisions intended for the preservation of the supply rather than determining the merchantable quality of oysters offered for sale,” showing that “inspection, policing, and business expenses * * * [were] to be paid for out of inspection fees.” In speaking of this matter the court said: “As the act itself makes a clear distinction between inspection expenses ‘and other expenses,’ the question at once arises as to whether the state did not provide for the collection of more than was ‘absolutely necessary for executing its inspection laws,’ thereby rendering the statute void because it included the cost" }, { "docid": "23232962", "title": "", "text": "Act of June 30, 1906, c. 3915, 34 Stat. 768; Savage v. Jones, supra. 2. The statute provides for inspection and analysis. Under § 6, it is the duty of the State Food and Dairy Commissioner to “cause to be made analyses of all concentrated commercial feeding-stuffs and agricultural seeds sold or offered for sale in this State.” For this purpose, that officer is authorized “in person or by deputy, to take for analysis a sample from any lot or package of concentrated commercial feeding-stuffs in this State,” and further provision is made to assure the representative character of the sample. The results of the analyses are to be published from time to time in official bulletins. The State Food and Dairy Commissioner is required to enforce the statute and to this end is authorized to appoint, with the approval of the executive council, such analysts and chemists as may be necessary, to carry it into effect. Violation of any of the provisions of the act is made a misdemeanor. We are of opinion that the statute must be considered as an inspection law which it was within the power of the State to enact, and that its fair import is that the fees exacted by § 5 above quoted are for the purpose of meeting the expense of inspection. The bill alleges no facts warranting the conclusion that the charge is unreasonable as compared with this expense. Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 347, 354, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Red “ C” Oil Co. v. North Carolina, 222 U. S. 380, 393; Savage v. Jones, supra. The payment of the sum of one hundred dollars in the case of “condimenta!, patented, proprietary or trademarked stock or poultry foods” was required in lieu of the-inspection charge of ten cents a ton, and was in effect a commutation of that' charge. The essential character of the exaction was not altered.- If,it be said that this provision discriminates against one' doing, a- small business, still the appellant" }, { "docid": "22796025", "title": "", "text": "Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. Aiken, 121 U. S. 444; establish inspection and quarantine laws, Turner v. Maryland, 107 U. S. 38; Morgan’s S. S. Co. v. Louisiana Board of Health, 118 U. S. 455; Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345; Rasmussen v. Idaho, 181 U. S. 198; Smith v. St. Louis & S. W. R. Co., 181 U. S. 248; Reid v. Colorado, 187 U. S. 137; New Mexico ex rel. McLean & Co. v. Denver & R. G. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Red “C” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Pure Oil Co. v. Minnesota, 248 U. S. 158; Mintz v. Baldwin, 289 U. S. 346; cf. Railroad Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer v. Reb-man, 138 U. S. 78; and regulate the taking or exportation of domestic game, Geer v. Connecticut, 161 U. S. 519; New York ex rel. Silz v. Hesterberg, 211 U. S. 31; cf. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 13, holding invalid a local regulation ostensibly designed to conserve a natural resource but whose purpose and effect were to benefit Louisiana enterprise at the expense of businesses outside the state." }, { "docid": "22796024", "title": "", "text": "Marsh Co., 2 Pet. 245; Ex parte McNiel, 13 Wall. 236; Pound v. Turck, 95 U. S. 459; Wilson v. McNamee, 102 U. S. 572; Huse v. Glover, 119 U. S. 543; cf. Sands v. Manistee River Improvement Co., 123 U. S. 288; approve the erection of bridges over navigable streams, Gilman v. Philadelphia, 3 Wall. 713; Escanaba Co. v. Chicago, 107 U. S. 678; Cardwell v. American River Bridge Co., 113 U. S. 205; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Lake Shore & M. S. R. Co. v. Ohio, 165 U. S. 365; require payment of fees as an incident to use of harbors, Cooley v. Board of Port Wardens, 12 How. 299; Steamship Co. v. Joliffe, 2 Wall. 450; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187; Clyde Mallory Lines v. Alabama ex rel. State Docks Comm’n, 296 U. S. 261; cf. Mobile County v. Kimball, 102 U. S. 691; control the location of docks, Cummings v. Chicago, 188 U. S. 410; impose wharfage charges, Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita Packet Co. v. Aiken, 121 U. S. 444; establish inspection and quarantine laws, Turner v. Maryland, 107 U. S. 38; Morgan’s S. S. Co. v. Louisiana Board of Health, 118 U. S. 455; Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345; Rasmussen v. Idaho, 181 U. S. 198; Smith v. St. Louis & S. W. R. Co., 181 U. S. 248; Reid v. Colorado, 187 U. S. 137; New Mexico ex rel. McLean & Co. v. Denver & R. G. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Red “C” Oil Mfg. Co. v. Board of Agriculture, 222 U. S. 380; Savage v. Jones, 225 U. S. 501; Pure Oil Co. v. Minnesota, 248 U. S. 158; Mintz v. Baldwin, 289 U. S. 346; cf. Railroad Co. v. Husen, 95 U. S. 465; Minnesota v. Barber, 136 U. S. 313; Brimmer" }, { "docid": "23232960", "title": "", "text": "any of’the concentrated commercial feeding-stuffs defined in section three (3) of this act, he shall pay to the state food and dairy commissioner an inspection fee of ten cents per ton for each ton of such concentrated commercial feeding-stuffs sold or offered -for- sale in the state of Iowa for use within this state; except that every manufacturer, importer, dealer or agent for any condimental, patented, proprietary or trademarked stock or poultry foods, or both, shall pay to the state food and dairy commissioner, on or before the fifteenth day of duly of each year, a license fee of one hundred dollars ($100.00) in lieu of such inspection fee. Whenever the manufacturer or importer of such foods shall have paid the' fee herein required, no other person or agent of such manufacturer or importer shall be required to pay such .license fee.” The appellant challenges the constitutional validity of the statute in these two particulars: (1) The requirement that the name and percentage of the diluent or diluents or bases shall be stated, and (2) the exaction of the fee of one hundred dollars. 1. With respect to the first question the case in its essential features is .not to be distinguished from that of Savage v. Jones, decided June 7, 1912, ante, p. 501, and nothing need be added to what was there said. It was competent for the State, in the exercise of its power to prevent imposition upon the public, to require the disclosure to which objection is made. The provision was not an unreasonable one and the effect upon interstate commerce was incidental only. Plumley v. Massachusetts, 155 U. S. 461; Hennington v. Georgia, 163 U. S. 299, 317; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Heath & Milligan Manufacturing Co. v. Worst, 207 U. S. 338; Asbell v. Kansas, 209 U. S. 251, 254, 256. Nor is there any conflict with the Food and Drugs" }, { "docid": "4500263", "title": "", "text": "be exercised in handling, storing and using the same.” , On the case thus stated it is claimed that the Supreme Court of Minnesota erred in refusing to hold: . First, That the inspection fees imposed were so excessive in amount as to render the act a revenue rather than an inspection measure and that as such it offends against § 8, Article I of the Federal Constitution, as an attempt by the State to regulate interstate commerce; and Second, That to the' extent that the act applies to gasoline it is not a valid exercise -of the police powers of ■ the State, because it does not serve to protect or safeguard the health, morals or convenience of the public and therefore offends against the Fourteenth Amendment to the Federal Constitution by depriving the plaintiff in error of its property without due process of law to the extent of the. fees which it in terms exacts. The principles of law applicable to the decision of the case thus before us are. few and they are perfectly settled by the decisions of this court. In the exercise of its police power á State may enact inspection laws, which are valid if they tend in a direct and substantial manner to promote the public safety and welfare or to protect the public from frauds and imposition when dealing in articles of general use, as to which Congress has not made any conflicting regulation, and a fee reásonably sufficient to pay the cost of such inspection may constitutionally be charged, even though the property may be moving in interstate commerce when inspected, Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345, 357, 358, 361; McLean & Co. v. Denver & Rio Grande R. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Patterson v. Kentucky, 97 U. S. 501, 504; Savage v. Jones, 225 U. S. 501, 525. Specifically, state laws providing* for the inspection of oils and gasoline have several times been recognized as valid by this court. Patterson v. Kentucky, 97 U." }, { "docid": "15293381", "title": "", "text": "legitimate expenses of inspection and regulation. It may be that, in spite of this lumping of receipts and expenditures, the fees paid by the railroads are no more than enough to defray such expenses. The court below was, therefore, justified in refusing to hold the statute void on its face. Second. The court thought the plaintiff had the burden of showing that the sums exacted from rail carriers substantially exceeded the amounts expended for regulation and supervision, and the proofs offered were insufficient to shift the burden to the defendant. This view was erroneous. Foote & Co. v. Stanley, 232 U. S. 494. In that case it appeared that the plaintiffs were packers of oysters taken from the waters of Maryland, Virginia, and New Jersey, and shipped to Baltimore. A statute of Maryland required that the oysters be inspected at Baltimore. It imposed a charge of one cent a bushel “to help defray the expenses of such inspection and the other expenses of the State Fishery Force, upon all oysters unloaded from vessels at the place where said oysters are to be no further shipped in bulk in vessels.” The plaintiffs refused to pay the exaction and, upon threat of enforcement, filed a bill in a state court for injunction alleging the fee was excessive, a burden on interstate commerce, and a violation of the constitutional provision that “No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.” The Maryland Court of Appeals [117 Md. 335; 82 Atl, 380] affirmed a decree dismissing the bill and this court reversed its decision. The plaintiff asserted that as the act laid the fee for the expense of inspection, “and other expenses,” it was obvious that the state had provided for the collection of more than was necessary for inspection. To this the state answered that the section levying the fee was but a part of an elaborate system of inspection imposed upon the state fishery force. It appeared from the evidence, as it" }, { "docid": "4500264", "title": "", "text": "are perfectly settled by the decisions of this court. In the exercise of its police power á State may enact inspection laws, which are valid if they tend in a direct and substantial manner to promote the public safety and welfare or to protect the public from frauds and imposition when dealing in articles of general use, as to which Congress has not made any conflicting regulation, and a fee reásonably sufficient to pay the cost of such inspection may constitutionally be charged, even though the property may be moving in interstate commerce when inspected, Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U. S. 345, 357, 358, 361; McLean & Co. v. Denver & Rio Grande R. R. Co., 203 U. S. 38; Asbell v. Kansas, 209 U. S. 251; Patterson v. Kentucky, 97 U. S. 501, 504; Savage v. Jones, 225 U. S. 501, 525. Specifically, state laws providing* for the inspection of oils and gasoline have several times been recognized as valid by this court. Patterson v. Kentucky, 97 U. S. 501; Red “C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, and Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159. But if such inspection charge should be obviously and largely in excess of the cost of inspection, the act will be declared void because constituting, in its operation, an obstruction to and burden upon that commerce among the States the exclusive regulation of which is committed to Congress by' the Constitution. Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Foote & Co. v. Maryland, 232 U. S. 494, 504, 508. Plainly the application of the principles thus stated leaves open for consideration only the question as to whether the inspection charge is so excessive as to render the act a revenue measure, asi the plaintiff in error claims that it is, and not an inspection I^w enacted in good faith to promote the' public safety and prevent fraud and imposition upon the users of oil-and gasoline. In the consideration of this question the discretion of the" }, { "docid": "15293392", "title": "", "text": "failed to carry this burden. It results that the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. 184 Wash. 648; 52 P. (2d) 1274. C. 107 Washington Session Laws of 1929. (Remington’s Revised Statutes §§ 10417, 10418.) This act amended § 1 of c. 113 of the Laws of 1921, as amended by § 1, e. 107 of the Laws of 1923. It left § 2 of c. 113, Laws of 1921, in effect. Pacific T. & T. Co. v. Seattle, 172 Wash. 649; 21 P. (2d) 721; affirmed on other questions, 291 U. S. 300. See also the opinion below, 184 Wash., pp. 650, 651; 52 P. (2d) p. 1275. The complaint as filed sought recovery also of sums paid pursuant to other statutory provisions. The appellant, however, abandoned these items of claim. Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386; New York v. Squire, 145 U. S. 175, 191. Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160; Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. Western Union v. New Hope, 187 U. S. 419, 425; Pure Oil Co. v. Minnesota, 248 U. S. 158, 162. McLean v. Denver & R. G. R. Co., 203 U. S. 38, 55. Compare Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393. Western Union v. New Hope, supra. Brimmer v. Rebman, 138 U. S. 78, 83; Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Pure Oil Co. v. Minnesota, supra, p. 162. Atlantic & Pacific Tel. Co. v. Philadelphia, supra, p. 164; Postal Telegraph-Cable Co. v. Taylor, supra, p. 69. Foote & Co. v. Stanley, 232 U. S. 494, 503, 504. Foote & Co. v. Stanley, supra, p. 505; Lugo v. Suazo, 59 F. (2d) 386. Western Union v. New Hope, supra, p. 425; Foote & Co. v. Stanley, supra, p. 507. Postal Telegraph-Cable Co. v. New Hope, 192 U. S. 55; Foote & Co. v. Stanley, supra, p. 508. Compare Mackay v. Dillon, 4 How. 421, 447; Dower" }, { "docid": "22048971", "title": "", "text": "covering the subject, the State may impose, even upon vehicles .using the highways exclusively in interstate commerce, non-discriminatory regulations for the purpose of insuring the public safety and convenience; that licensing or registration of busses is a measure appropriate to that end; .and that a license fee no larger in amount than is reasonably required to defray the expense of administering the regulations may be demanded. Hendrick v. Maryland, 235 U. S. 610, 622; Kane v. New Jersey, 242 U. S. 160; Morris v. Duby, 274 U. S. 135; Clark v. Poor, 274 U. S. 554. Compare Hess v. Pawloski, 274 U. S. 352. These powers may also be exercised by a city :if authorized to do so by appropriate legislation. Compare Erb v. Morasch, 177 U. S. 584, 585; Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. Such regulations rest for their validity upon the same basis as do state inspection laws, Patapsco Guano Co. v. Board of Agriculture, 171 U. S. 345; Red “ C ” Oil Co. v. Board of Agriculture, 222 U. S. 380, and municipal ordinances imposing on telegraph companies, though engaged in interstate commerce, a tax to defray the expense incident to the inspection of poles and wires. Western Union Telegraph Co. v. New Hope, 187 U. S. 419; Postal Telegraph-Cable Co. v. Richmond, 249 U. S, 252, 258; Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. But it does not appear that the license fee here in question was imposed as an incident of such a scheme of municipal regulation; nor that the proceeds were applied to defraying the expenses of such regulation;.nor that the amount collected under the ordinance was ño more than was reasonably required for such a purpose. It follows that the exaction of the license fee cannot be sustained as a police measure. Atlantic & Pacific Telegraph Co. v. Philadelphia, 190 U. S. 160, 164; Postal-Telegraph Cable Co. v. New Hope, 192 U. S. 55; Adams Express Co. v. New York, 232 U. S. 14, 32. Compare Foote & Co. v. Stanley, 232" }, { "docid": "4500265", "title": "", "text": "S. 501; Red “C” Oil Mfg. Co. v. Board of Agriculture of North Carolina, 222 U. S. 380, and Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159. But if such inspection charge should be obviously and largely in excess of the cost of inspection, the act will be declared void because constituting, in its operation, an obstruction to and burden upon that commerce among the States the exclusive regulation of which is committed to Congress by' the Constitution. Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Foote & Co. v. Maryland, 232 U. S. 494, 504, 508. Plainly the application of the principles thus stated leaves open for consideration only the question as to whether the inspection charge is so excessive as to render the act a revenue measure, asi the plaintiff in error claims that it is, and not an inspection I^w enacted in good faith to promote the' public safety and prevent fraud and imposition upon the users of oil-and gasoline. In the consideration of this question the discretion of the legislature in determining the amount of the inspection fee will not lightly be disturbed. Its determination is prima facie reasonable and the courts will not “enter into any nice calculation as to the difference between cost and collection; nor will they declare the fees to be excessive unless it is made clearly to appear that- they are obviously and largely beyond what is needed to pay for the inspection services rendered.”' Foote & Co. v. Maryland, 232 U. S. 494, 504, and Western Union Telegraph Co. v. New Hope, 187 U. S. 419. ; The findings of fact give the following statement of receipts and expenses under the law' assailed, from and > including the year 1909, in which ibwa's passed, to April 30, 1915, which includes the last day covered by the claim in suit, viz: Year Receipts Expenses Percentage of Receipts Used for Department Expenses 1909 $34,934 $30,288 ' 87% 1910 50,667 40,044 79% 1911 56,852 40,494 , 71% 1912 83,354 39,999 63% 1913 72,656 47,117 65% 1914' 81,565 52,467 64% July 31," }, { "docid": "15299752", "title": "", "text": "the other expenses of the State Fishery Foi*ee.’ ” Besides inspection the Fishery Force had other duties imposed upon it by the act. “That organization * * * [was] supplied with men and boats, and required to patrol, day and night, the waters of Chesapeake bay to prevent unlicensed boats from taking oysters [and all boats] from improper tonging or dredging, and to see that shells and culls * * * [were] returned to the natural beds, — provisions intended for the preservation of the supply rather than determining the merchantable quality of oysters offered for sale,” showing that “inspection, policing, and business expenses * * * [were] to be paid for out of inspection fees.” In speaking of this matter the court said: “As the act itself makes a clear distinction between inspection expenses ‘and other expenses,’ the question at once arises as to whether the state did not provide for the collection of more than was ‘absolutely necessary for executing its inspection laws,’ thereby rendering the statute void because it included the cost of ‘something beyond legitimate inspection to determine quality and condition.’ Brimmer v. Rebman, 138 U. S. 83, 11 S. Ct. 213, 34 L. Ed. 862, 3 Inters. Com. Rep. 485.” In discussing .the question whether the fees authorized by the act were more than necessary for executing its inspection provisions, the court laid down two preliminary propositions which were in substance as follows: (1) That where the Legislature in a so-called inspection act fixes the fees to cover the expense of inspection and provides that the same shall be devoted to that purpose, the presumption is that the fees fixed are reasonable and the burden of showing them unreasonable is upon him who asserts the invalidity of the act; but (2) where the Legislature in such an act directs the inspection fees there provided for shall be devoted to defraying “other expenses” as well as those for the inspection provided for in the act, the presumption is that the fees fixed are unreasonable, and the burden is on him who afiiims tho validity of the" }, { "docid": "23232963", "title": "", "text": "the statute must be considered as an inspection law which it was within the power of the State to enact, and that its fair import is that the fees exacted by § 5 above quoted are for the purpose of meeting the expense of inspection. The bill alleges no facts warranting the conclusion that the charge is unreasonable as compared with this expense. Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 347, 354, 361; McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 50; Red “ C” Oil Co. v. North Carolina, 222 U. S. 380, 393; Savage v. Jones, supra. The payment of the sum of one hundred dollars in the case of “condimenta!, patented, proprietary or trademarked stock or poultry foods” was required in lieu of the-inspection charge of ten cents a ton, and was in effect a commutation of that' charge. The essential character of the exaction was not altered.- If,it be said that this provision discriminates against one' doing, a- small business, still the appellant wholly fails to show that it is thereby injured and thus entitled to complain. On the contrary,, the bill alleges that the appellant “sells tó more than eight hundred dealers in the State of Iowa, besides • a very large number of customers who buy direct from your orator or through its agents,” and that it “has been enabled to sell in the State of Iowa during the past year and for a number of years preceding a quantity of its goods in an amount exceeding $40,000 per annum.” The case in this aspect falls within the established rule that “one who would strike down a state statute as viola-tive of the Federal Constitution must bring himself .by proper averments and showing within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the Federal Constitution.” Southern Ry. Co. v. King, 217. U. S. 524, 534. See also Tyler v." }, { "docid": "15293395", "title": "", "text": "for the regulation of public utilities generally, irrespective of their special function, does not make out a case of wrong to railroads considered as a separate class or to appellant in particular. Eor the purposes of this case there is no need to inquire whether anything in the Fourteenth Amendment forbids the recognition of a single and all-inclusive class of public service corporations without further subdivision. If the prohibition be assumed, still the burden is on the railroads to satisfy the court that what was contributed by them was more than what was expended for their account, since otherwise the common pot may have been a help and not a hurt. That burden was not discharged. Far from being discharged, there was a disclaimer of any attempt or purpose to discharge it. And so the case must fail. Norfolk & Western Ry. Co. v. North Carolina, 297 U. S. 682, 688, 689, 690. The decision in Foote v. Stanley, 232 U. S. 494, much relied on by appellant, is inapplicable here. That was a case under Article I, § 10, of the Constitution, which provides that “no State shall, without the consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws.” Maryland passed an act for the payment of charges, characterized as inspection fees, upon imports of oysters from neighboring states. The “inspectors” did more than inspect the oysters; they policed the waters of Chesapeake Bay, being thus policemen as well as inspectors. On its face the act provided that a fee of one cent per bushel should be “levied to help pay the salary of the inspectors and the other expenses of the State Fishery Force.” 232 U. S. at 505. In these circumstances the ruling was that in a suit for an injunction brought by the importers the state had the burden of showing that the fee was not an unreasonable one for the service of inspection as distinguished from the other services covered thereby. Imposts upon interstate commerce being generally prohibited, and being," }, { "docid": "15299753", "title": "", "text": "of ‘something beyond legitimate inspection to determine quality and condition.’ Brimmer v. Rebman, 138 U. S. 83, 11 S. Ct. 213, 34 L. Ed. 862, 3 Inters. Com. Rep. 485.” In discussing .the question whether the fees authorized by the act were more than necessary for executing its inspection provisions, the court laid down two preliminary propositions which were in substance as follows: (1) That where the Legislature in a so-called inspection act fixes the fees to cover the expense of inspection and provides that the same shall be devoted to that purpose, the presumption is that the fees fixed are reasonable and the burden of showing them unreasonable is upon him who asserts the invalidity of the act; but (2) where the Legislature in such an act directs the inspection fees there provided for shall be devoted to defraying “other expenses” as well as those for the inspection provided for in the act, the presumption is that the fees fixed are unreasonable, and the burden is on him who afiiims tho validity of the act. In that ease the statute then before tho court was the re-enactment of an old law levying the same charge of one cent per bushel for inspection and the other expenses of the state fishery force. Under the operations of the old law, it appeared that the revenue1’ produced by it was $40,000, one-third of which was sufficient to pay the salaries of the inspectors, the other two-thirds being used to pay the “other expenses of the Fishery Force.” It did not, however, appear what revenue was produced under the operation of the new statute, but the court held that in the light of the operation of the previous act the failure to show that the amount collected under the new, would not be more than was necessary for the expenses of inpeetion proper, tho present statute was void as imposing an undue burden or tax on interstate commerce. See, also, Foote & Co. v. Clagett, 116 Md. 228, 81 A. 511. The difference between that case and tho one here in question (if" }, { "docid": "15293393", "title": "", "text": "Mackay Telegraph Co. v. Little Rock, 250 U. S. 94, 99. Western Union v. New Hope, 187 U. S. 419, 425; Pure Oil Co. v. Minnesota, 248 U. S. 158, 162. McLean v. Denver & R. G. R. Co., 203 U. S. 38, 55. Compare Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393. Western Union v. New Hope, supra. Brimmer v. Rebman, 138 U. S. 78, 83; Postal Telegraph-Cable Co. v. Taylor, 192 U. S. 64; Pure Oil Co. v. Minnesota, supra, p. 162. Atlantic & Pacific Tel. Co. v. Philadelphia, supra, p. 164; Postal Telegraph-Cable Co. v. Taylor, supra, p. 69. Foote & Co. v. Stanley, 232 U. S. 494, 503, 504. Foote & Co. v. Stanley, supra, p. 505; Lugo v. Suazo, 59 F. (2d) 386. Western Union v. New Hope, supra, p. 425; Foote & Co. v. Stanley, supra, p. 507. Postal Telegraph-Cable Co. v. New Hope, 192 U. S. 55; Foote & Co. v. Stanley, supra, p. 508. Compare Mackay v. Dillon, 4 How. 421, 447; Dower v. Richards, 151 U. S. 658, 667; Cleveland, C., C. & St. L. Ry. v. Backus, 154 U. S. 439, 443; Cedar Rapids Gas Co. v. Cedar Rapids, 223 U. S. 655, 668; Bailey v. Alabama, 219 U. S. 219, 239; Central Vermont Ry. v. White, 238 U. S. 507, 512; Hill v. Smith, 260 U. S. 592, 594. Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573, 591; Creswill v. Knights of Pythias, 225 U. S. 246, 261; Northern Pacific Ry. v. North Dakota, 236 U. S. 585, 593; Interstate Amusement Co. v. Albert, 239 U. S. 560, 566; Truax v. Corrigan, 257 U. S. 312, 324; Ward & Gow v. Krinsky, 259 U. S. 503, 511; Aetna Life Insurance Co. v. Dunken, 266 U. S. 389, 394; Fiske v. Kansas, 274 U. S. 380, 385; Ancient Order v. Michaux, 279 U. S. 737, 745; Consolidated Textile Corp. v. Gregory, 289 U. S. 85, 86. Me. Justice Caedozo, dissenting. To show that the revolving fund was used as a common pot" }, { "docid": "22786535", "title": "", "text": "items has been required. Investigations of attempted evasions increase the unit cost above that of other types of traffic. The total of these added expenses, as computed by appellants at about $133,000 annually, .certainly approximates the amount of tie revenue derived from the fees. The aggregate of the fees collected during eleven months for 14,000 cars at $7.50 each is $105,000. Appellees do nothing to challenge this evidence, and they point to no specific errors in the estimates or computation upon which appellants calculate the costs. The state is not required to compute with mathematical precision the cost to it of the services necessitated by the caravan traffic. If the fees charged do not appear to be manifestly disproportionate to the services rendered, we cannot say from our own knowledge or experience that they are excessive. Kane v. New Jersey, supra, 168; Interstate Busses Corp. v. Blodgett, supra, 251, 252; Morf v. Bingaman, supra; Dixie Ohio Express Co. v. State Revenue Comm’n, supra; see Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 354; McLean & Co. v. Denver & Rio Grande R. Co., 203 U. S. 38, 55; Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186. Appellees have failed to sustain the burden of proof that either of the fees is excessive for the purpose for which it' is collected. The trial court seems to have thought as appellees argue, that unreasonableness .of the fees was established by proof that the same fees are not imposed on other classes of traffic. Bjit since, as we have seen, there is basis for the classification of the traffic, .there is basis for a difference in fees charged the different classes. Hendrick v. Maryland, supra; Interstate Busses Corp. v. Blodgett, supra. Appellees have laid no foundation for any contention that there are not compensating differences in the traffic comparable to the difference in fees, or for impeaching the legislative judgment that those specified are fairly related to the traffic to which they are applied. The cause will be reversed with instructions to the district court to dismiss the ease" } ]

[ { "docid": "22684410", "title": "", "text": "Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). The County does not dispute that, at the time the second amended complaint was filed, plaintiffs James, Simon, and Hyde had been arrested without warrants and were being held in custody without having received a probable cause determination, prompt or otherwise. Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs’ injury was at that moment capable of being redressed through injunctive relief. The County’s argument that the constitutional violation had already been “completed” relies on a crabbed reading of the complaint. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint. It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases we have held that “the termination of a class representative’s claim does not moot the claims of the unnamed members of the class.” See, e. g., Gerstein, 420 U. S., at 110-111, n. 11, citing Sosna v. Iowa, 419 U. S. 393 (1975); Schall v. Martin, 467 U. S. 253, 256, n. 3 (1984). That the class was not certified until after the named plaintiffs’ claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that “[s]ome claims are so. inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative’s individual interest expires.” United States Parole Comm’n v. Geraghty, 445 U. S. 388, 399 (1980), citing Gerstein, supra, at 110, n. 11. In such cases, the “relation back” doctrine is properly invoked to preserve the merits of the" } ]

[ { "docid": "22569816", "title": "", "text": "dismiss class allegations where it had already certified a class and “only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives.”). As the Court reasoned in Sosna v. Iowa, once a class action has been certified, “the class of unnamed persons described in the certification acquire[s] a legal status separate from the representative.” Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Sosna involved a class action challenging the constitutionality of a state statute imposing a one-year residency requirement for instituting a divorce action. Id. at 397, 95 S.Ct. 553. At the time of the district court judgment, plaintiff had not yet met the residency requirement. Id. at 398, 95 S.Ct. 553. By the time the case reached the Supreme Court, however, plaintiff had not only met the residency requirement but also obtained a divorce in another state. Id. at 398 & n. 7, 95 S.Ct. 553. With regard to mootness, the Supreme Court held that the “cases or controversies” requirement of Article III — which requires a plaintiff with a live case or controversy, not only at the time of filing and at the time of class certification, but also when a court reviews the case — is satisfied by “a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.” Id. at 402, 95 S.Ct. 553. As one commentator put it, “[w]hat saved Sosna from being moot was class certification.” Bums, 22 U.C.D.L. Rev. at 1248. The following year the Court clarified Sosna in Franks v. Bowman Transportation Company, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), which involved a class action against an employer for racially discriminatory employment practices. Although the named representative no longer had a personal stake in the outcome because he had been hired and properly discharged for cause, the Court held that “[t]he unnamed members of the class involved are identifiable individuals, individually named in the record,” and “[n]o questions are raised concerning" }, { "docid": "2651590", "title": "", "text": "argument does not support the defendant’s requested dismissal presently. Id. at 668. Similarly, in Jepson v. Ticor Title Insurance Company, No. C06-1723-JCC, 2007 WL 2060856 (W.D.Wash. May 1, 2007), the district court found that where a named plaintiff had established individual standing, questions about the plaintiffs ability to represent a class consisting of residents from other states were logically antecedent to standing inquiries because “there [was] no question that the proposed class would have standing to assert non-Washington claims if it were certified.” Id. at *1. Because of the nature of class certification — a process wherein members of the class acquire legal status once a class is certified — standing may be established by looking to the rights and interests of the members of the certified class; see Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (although controversy was no longer alive as to the named plaintiff, “it remains very much alive for the class of persons she has been certified to represent.”). Thus, class certification may, in a true sense of the term, be “logically antecedent” to standing. The conclusion that it is permissible to decide class certification before determining standing to pursue claims of unnamed class members is consistent with Article III. Provided there is threshold standing for each named plaintiff, ordering the adjudication process so as to address who cognizable parties are in the case (ie., whether unnamed class members have legal status) before addressing standing does no violence to Article III. A case or controversy may still be assured once the class is certified. This conclusion is also consistent with a body of cases that have examined the question whether a named plaintiff in consumer class action can bring suit on behalf of individuals who purchased products different from, but similar to, those purchased by the named plaintiff. In these cases, it could be argued that the named plaintiff would not have Article III standing to assert directly such claims against the defendant — having never purchased the “similar” product, he or she can not claim to have suffered" }, { "docid": "2651588", "title": "", "text": "has a legal status separate from and independent of the interest asserted by the named plaintiff.” Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir.2002). The Ninth Circuit has similarly recognized that “once a class has been certified, “the class of unnamed persons described in the certification acquire[s] a legal status separate from the representative.’ ” Bates v. United Parcel Service, Inc., 511 F.3d 974, 987 (9th Cir.2007) (quoting Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975)). Indeed, a number of cases in this “growing consensus” have addressed this issue in the precise “sister state” law scenario raised in this case and found class certification to be logically antecedent to class considerations. For example, in Having v. Transnation Title Ins. Co., 545 F.Supp.2d 662 (E.D.Mich.2008), plaintiff brought a class action alleging that the defendant title insurance company overcharged its premium on title insurance. See id. at 664. Plaintiff resided in Michigan, but sought to represent a class of consumers harmed by the defendant in Michigan, Arizona, Colorado, Maryland, Minnesota, Missouri, New Jersey, and Washington. Id. The court recognized that it was undisputed that plaintiff had established standing under Michigan law. It then found that in order for him to represent the putative class, “he must establish that his claim is typical of those individuals whose claims arise under the laws of the other states and he can represent those individuals adequately.” Id. at 668. According to the court, this analysis was necessarily, and logically, antecedent to questions of standing: For example, with the facts presented in the complaint, the plaintiff certainly could not file an individual suit only seeking relief under Arizona law; however, a member of his proposed class from that state likely would have suffered an injury that could be redressed under Arizona law. The defendant has not seriously challenged the plaintiffs standing to assert his claims arising from the alleged overcharge on his own refinancing transaction. The question whether he has standing to proceed as a class representative will be subsumed in the class certification decision, but it the" }, { "docid": "7288866", "title": "", "text": "We note only that Rule 23(a) inevitably requires consideration of the typicality of the claims presented by the named parties (Rule 23(a)(3)), which allows exploration of the question whether the essence of the suit relates to the state statute or if the named representatives’ claims are more particular to each individual county. The numerosity, commonality, and adequacy of representation-factors will also require further development on remand, subject to whatever ruling the court may make with respect to the related class actions and with respect to the individual claims. Because this action was pending at the time the Ringswald and Coleman suits were decided, and because the plaintiffs here are seeking monetary relief in part, the court will also need to consider whether the other litigation is capable of barring claims that would have required the procedural protections of Rule 23(b)(3), including especially the right to opt out of the related case. We close with' a few observations about the use of the class action device to consolidate claims that are common to plaintiff class members, where the defendants have not had the same interactions with each member of the class. We understand Ortiz to rest on the long-standing rule that, once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs. The certification of a class changes the standing aspects of a suit, because “[a] properly certified class has a legal status separate from and independent of the interest asserted by the named plaintiff.” Whitlock v. Johnson, 153 F.3d 380, 384 (7th Cir.1998). See also United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The Supreme Court underscored in Sosna the independent le gal status of class actions from the original plaintiff and held that, where a class has been" }, { "docid": "7288867", "title": "", "text": "where the defendants have not had the same interactions with each member of the class. We understand Ortiz to rest on the long-standing rule that, once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs. The certification of a class changes the standing aspects of a suit, because “[a] properly certified class has a legal status separate from and independent of the interest asserted by the named plaintiff.” Whitlock v. Johnson, 153 F.3d 380, 384 (7th Cir.1998). See also United States Parole Comm’n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 753, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The Supreme Court underscored in Sosna the independent le gal status of class actions from the original plaintiff and held that, where a class has been properly certified, even the mootness of the named plaintiffs individual claim does not render the class action moot— very much a standing inquiry. 419 U.S. at 399-401. See Franks, 424 U.S. at 753-55 (applying Sosna even though the named plaintiffs claim did not involve an issue “capable of repetition, yet evading review”). In Geraghty, the Court extended this principle and held that a class action does not become moot upon expiration of the named plaintiffs substantive claim even when class certification was denied in the district court, 445 U.S. at 404, and the named plaintiff could continue to argue on appeal for reversal of the district court’s denial of class certification despite the mootness of his individual claim. See id. at 404-05. We conclude that the plaintiffs may be entitled to represent a class suing all 19 defendant counties if, under the reasoning of La Mar and its progeny, they fulfill all the requirements of Rule 23. This question of “standing” is just one part of a rather complex network of rules regulating class actions," }, { "docid": "19707020", "title": "", "text": "and dismissal); Rothman v. Gould, 52 F.R.D. 494, 496 (S.D. N.Y.1971) (settlement and dismissal); Yaffe v. Detroit Steel Corp., 50 F.R.D. 481 (N.D.Ill.1970) (settlement and dismissal); Philadelphia Electric Co. v. Anaconda American Brass Co., supra (settlement and dismissal); cf. Brookhaven Housing Coalition v. Sampson, 65 F.R.D. 24 (E.D.N.Y.1974) (dismissal of plaintiff’s claim for lack of standing); Gaddis v. Wyman, 304 F.Supp. 713, 715 (S.D.N.Y.1969) (dismissal of plaintiff’s claim for mootness). But cf., Booth v. Prince George’s County, Maryland, 66 F.R.D. 466 (D.Md.1975) [4 Class Action Reports (“C.A. R.”) 473] (dismissal for lack of standing). Counsel for plaintiff argues that this presumption of Rule 23(e) application during the pre-certification stage has been undercut by the Supreme Court’s recent pronouncement that “[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by appellant.” Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975). “The certification of a suit as a class action has important consequences for the unnamed members of the class. If the suit proceeds to judgment on the merits, it is contemplated that the decision will bind all persons who have been found at the time of certification to be members of the class. Rule 23(c)(3); Advisory Committee Note, 28 U.S.C. App., pp. 7765-7766, 39 F.R.D. 69, 105-106. Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Rule 23(e).” Id. n. 8. This Court cannot accept the negative implication urged by counsel that, in view of the above-quoted language, Rule 23(e) and its requirement of notice should not be presumed to apply prior to class certification. The Supreme Court did not have before it the factual circumstances and potential for abuse posed by the instant settlement proposal. Rather, the Supreme Court’s discussion pertained to the question of mootness and whether a certified class action survives the resolution of the named plaintiff’s claim. Thus, in view of the unrelated nature of the question before" }, { "docid": "844365", "title": "", "text": "the same issue saying: In the present suit, where it is unlikely that segments of the class appellant represents would have interests conflicting with those she has sought to advance, and where the interests of that class have been competently urged at each level of the proceeding, we believe that the test of Rule 23(a) is met. 419 U.S. at 403, 95 S.Ct. at 559, 42 L.Ed.2d at 543 (footnote omitted). See also Frost v. Weinberger, 515 F.2d 57, 64-65 (2d Cir. 1975). Furthermore, Tedeschi is represented by a federally funded legal services office which has a clientele with a continuing interest in the subject matter of this action. See Gerstein v. Pugh, 420 U.S. 103, 110-11 n. 11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54, 63 (1975). Finally, since this is a 23(b)(2) class action, unnamed class members need not be given notice of its pendency. Sosna v. Iowa, 419 U.S. at 397 n. 4, 95 S.Ct. at 556, 42 L.Ed.2d at 539; Frost v. Weinberger, 515 F.2d at 65. III. THE MOOTNESS ISSUE The defendants contend that this case is moot because Tedeschi has both regained possession of his car and relinquished all claims for damages. We disagree. Since we have certified this case as a class action on behalf of all automobile owners in Connecticut directly affected by the provisions of § 14-150(b) and (c), we need not decide whether it would be moot if the plaintiff had proceeded solely on his own behalf, for in light of Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 558, 42 L.Ed.2d 532, 541 (1975), the instant case’s status as a class action forecloses any issue of mootness that might have otherwise arisen. The pertinent issue addressed by the Court in Sosna was under what circumstances the mooting of the named plaintiff’s personal claims in a class action does or does not moot the entire action. The named plaintiff there brought a class action to challenge the constitutionality of an Iowa statute’s one-year residence requirement for petitioners in marriage dissolution proceedings. Al though by the time the ease" }, { "docid": "7295913", "title": "", "text": "POSNER, Chief Judge. This is a long-running class action (first brought in 1982, and certified as a class action in 1985) by inmates of the segregation wards in Illinois’ maximum security prisons. These inmates claim that prison officials have blocked their access to the courts in violation of the due process clause of the Fourteenth Amendment as interpreted in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). After a trial conducted in 1991 and 1992, the district judge found that their right of access had indeed been infringed. Walters v. Edgar, 900 F.Supp. 197 (N.D.Ill.1995) (see also Walters v. Thompson, 615 F.Supp. 330 (N.D.Ill.1985), finding infringement but denying a preliminary injunction). But after the Supreme Court decided Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the judge dismissed the suit on the ground that the named plaintiffs did not have standing to maintain it, Walters v. Edgar, 973 F.Supp. 793 (N.D.Ill.1997), precipitating this appeal. The plaintiffs argue that even if they do lack standing, the suit should not have been dismissed but instead other members of the class should have been named as the class representatives. This would indeed have been the proper course if something had happened to deprive the named plaintiffs of standing (or otherwise to render them inappropriate representatives of the class) after the suit had been filed, provided that two conditions were satisfied: that the suit had been certified as a class action, which would make the unnamed class members parties to the suit unless and until they opted out; and that at least one of these unnamed class members had standing. County of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir.1995). What would have saved the suit from dismissal had these two conditions been satisfied would not have been the principle that jurisdiction once acquired is not defeated by a change of circumstances. Mollan v. Torrance," }, { "docid": "6057983", "title": "", "text": "class members. When the named plaintiffs to a class action are found to lack the typical characteristics of a class member, the United States Court of Appeals for the Seventh Circuit instructs that the suit should not be dismissed and new class representatives named from the class. See Walters v. Edgar, 163 F.3d 430, 432 (7th Cir. 1998). This would indeed have been the proper course if something had happened to deprive the named plaintiffs of standing (or otherwise to render them inappropriate representatives of the class) after the suit had been filed, provided that two conditions were satisfied: that the suit had been certified as a class action, which would make the unnamed class members parties to the suit unless and until they opted out; and that at least one of these unnamed class members had standing. Id.; see also Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4th Cir.1972) (remanding case back to district court upon dismissal of named plaintiffs ease to permit new class representatives to be selected from the class); Booth v. Prince George’s County, 66 F.R.D. 466, 473 (D.Md.1975) (applying Cox solution to replace named Plaintiff in class action where named plaintiff had not yet suffered injury). The posture of this case closely resembles that contemplated in Walters and the Court finds that approach instructive. To prematurely act through de-certification would be a waste of the judicial and litigant resources invested in this matter. The Defendant argues that the named Plaintiffs are atypical for the claims they seek to prosecute on behalf of the putative class members. The Court, having examined the documentation submitted to it, agrees with the Defendant. The named Plaintiffs lack characteristics that permit them to make claims under most of the theories of liability alleged in the Sixth Amended Complaint. Specifically, the records before the Court indicate that none of the named Plaintiffs are due surplus damages and that most, if not all, have not made payments towards a deficiency. While named Plaintiff Seamster claims garnishment of her wages, her name is not among those produced as part of" }, { "docid": "23464425", "title": "", "text": "standing is satisfied. United States Parole Commission v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Wiesmueller v. Kosobucki, 513 F.3d 784, 785-86 (7th Cir.2008). This is true even if the named plaintiff (the class representative) lacks standing, provided that he can be replaced by a class member who has standing. “The named plaintiff who no longer has a stake may not be a suitable class representative, but that is not a matter of jurisdiction and would not disqualify him from continuing as class representative until a more suitable member of the class was found to replace him.” Id. at 786. Before a , class is certified, it is true, the named plaintiff must have standing, because at that stage no one else has a legally protected interest in maintaining the suit. Id.; Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir.1998); Murray v. Auslander, 244 F.3d 807, 810 (11th Cir.2001). And while ordinarily an unchallenged allegation of standing suffices, a colorable challenge requires the plaintiff to meet it rather than stand mute. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). PIMCO tried to show in the district court that two of the named plaintiffs could not have been injured by the alleged corner. We need not decide whether it succeeded in doing so, because even if it did, that left one named plaintiff with standing, and one is all that is necessary. If the case goes to trial, this plaintiff may fail to prove injury. But when a plaintiff loses a case because he cannot prove injury the suit is not dismissed for lack of jurisdiction. Jurisdiction established at the pleading stage by a claim of injury that is not successfully challenged at that stage is not lost when at trial the plaintiff fails to substantiate the allegation of injury; instead the suit is dismissed on the merits. American Civil Liberties Union v. St. Charles, 794 F.2d 265, 269 (7th Cir.1986). Pressed at" }, { "docid": "4529592", "title": "", "text": "met. These requirements having been satisfied, the Court next addresses the requirement of adequacy of representation. iv. Adequacy of Representation A class may only be certified if “the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4). While the commonality and typicality requirements “also tend to merge with the adequacy-of-representation requirement, ... the [adequacy-of-representation] requirement also raises concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S. at 158 n. 13, 102 S.Ct. 2364. Although Defendants refer to Ms. Taylor’s changed circumstances after suit was commenced and a preliminary injunction requiring HANH to provide her with assistance was granted on joint stipulation (See Defs.’ Suppl. Mem. Supp. Obj. Class Cert. [Doe. # 65] at 8-9; Order Granting Pis.’ Mot. Prelim. Inj. [Doc. # 23]), they do not otherwise challenge the adequacy of representation that the named plaintiffs would provide to class members. HANH has not suggested that Mr. Hunter’s claim is moot. As to the effect of the preliminary injunction requiring HANH to assist Ms. Taylor, “[w]here class claims are inherently transitory, ‘the termination of a class representative’s claim does not moot the claims of the unnamed members of the class,’ ” and in any event “[e]ven where the class is not certified until after the claims of the individual class representatives have become moot, certification may be deemed to relate back to the filing of the complaint in order to avoid mooting the entire controversy.” Robidoux, 987 F.2d at 938-39 (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and citing Sosna v. Iowa, 419 U.S. 393, 401-02 & n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) and Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991)). As a result, and because Ms. Taylor and Mr. Hunter represent all factual scenarios encompassed by their class claims, the Court determines that Rule 23(a)(4) is satisfied here. C. Class Certification under Rule 23(b) Requirement Plaintiffs seek certification of a class pursuant to Rule 23(b)(2). A class" }, { "docid": "20574943", "title": "", "text": "as a class representative, see, e.g., E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403-04, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977); Burris v. First Fin. Corp., 928 F.2d 797, 806 (8th Cir.1991), but given that a class already has been certified, “the class of unnamed persons described in the certification acquire a legal status separate from the interest asserted by [Smook].” Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). This separate legal status means that the dismissal of Smook’s claim does not inexorably require dismissal of the class action, id. at 399-401, 95 S.Ct. 553; Rodriguez, 431 U.S. at 406 n. 12, 97 S.Ct. 1891; but cf. Great Rivers Coop. of Southeastern Iowa v. Farmland Indus., Inc., 120 F.3d 893, 899 (8th Cir.1997), but it also does not mandate that we decide constitutional issues in the abstract or in a context that may be hypothetical. See Kremens v. Bartley, 431 U.S. 119, 134, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977) (“While there are ‘live’ disputes between unnamed members of the class certified by the District Court, on the one hand, and [defendants], on the other, these disputes are so unfocused as to make informed resolution of them almost impossible.”). Under these unusual circumstances, we decline to pass on the merits of the' constitutional claims of the unnamed class members that must be resolved as a first step in determining whether Banbury and Cheever are entitled to qualified immunity from suit. Because we decline to resolve this aspect of the appeal by the individual defendants, we dismiss for lack of jurisdiction that portion of the county’s appeal regarding liability for damages to the unnamed class members. On remand, the district court may consider, after pausing to “stop, look, and listen,” id. at 135, 97 S.Ct. 1709, whether the class should be redefined or decertified, cf. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), and whether there is an adequate class representative to replace Smook, if appropriate. Cf. Howe v. Varity Corp., 896 F.2d" }, { "docid": "1634999", "title": "", "text": "Supreme Court precedent. To examine the relation back argument, we work forward from the Supreme Court decisions. In 1975, the Supreme Court modified the general rule of mootness, which is that a class action becomes moot when the putative representative plaintiffs claim has been rendered moot before a class is certified. The Court declined to find mootness where the named class action plaintiffs claim becomes moot after the class was certified. Sosna v. Iowa, 419 U.S. 393, 402-03, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Important to the Court’s reasoning was that “[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named plaintiff].” 419 U.S. at 400, 95 S.Ct. at 557. Consequently, a live controversy continued to exist. Id. at 399-402, 95 S.Ct. at 558. The Court concluded: There must ... be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class is certified by the District Court.... The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot. 419 U.S. at 402, 95 S.Ct. at 559. The Sosna Court took care to “disturb no principles ... with respect to class action litigation.” Id. at 402-03, 95 S.Ct. 553 (citing Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 1249, 36 L.Ed.2d 1 (1973); Hall v. Beals, 396 U.S. 45, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969)); see also Walker v. Haynes, 659 F.2d 46, 47 (5th Cir.1981). The Court subsequently applied Sosna’s reasoning to mootness that follows an order denying class certification. U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). The Court there held that a putative class representative can maintain an action when the suit “would have acquired the independent" }, { "docid": "22569815", "title": "", "text": "moot because he is no longer in a driver-eligible position, questions we do not decide, the remaining class members are not foreclosed from attaining relief since the class was long ago duly certified. The Supreme Court has acknowledged that “there is tension in [its] prior cases” with respect to standing and adequacy in the class action context. Gratz v. Bollinger, 539 U.S. 244, 263 n. 15, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). The same tension exists with re spect to standing and mootness in class actions. Id.See also Jean Wegman Burns, Standing and Mootness in Class Actions: A Search for Consistency, 22 U.C.D.L. Rev. 1239 (1989). Nonetheless, even amidst these tensions, as in Gratz, “whether the requirement is deemed one of adequacy or standing [or mootness], it is clearly satisfied in this case.” Gratz, 539 U.S. at 263, 123 S.Ct. 2411. See E. Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 406 n. 12, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (noting that it would be error for a district court to dismiss class allegations where it had already certified a class and “only later had it appeared that the named plaintiffs were not class members or were otherwise inappropriate class representatives.”). As the Court reasoned in Sosna v. Iowa, once a class action has been certified, “the class of unnamed persons described in the certification acquire[s] a legal status separate from the representative.” Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Sosna involved a class action challenging the constitutionality of a state statute imposing a one-year residency requirement for instituting a divorce action. Id. at 397, 95 S.Ct. 553. At the time of the district court judgment, plaintiff had not yet met the residency requirement. Id. at 398, 95 S.Ct. 553. By the time the case reached the Supreme Court, however, plaintiff had not only met the residency requirement but also obtained a divorce in another state. Id. at 398 & n. 7, 95 S.Ct. 553. With regard to mootness, the Supreme Court held that the “cases or controversies” requirement" }, { "docid": "7295914", "title": "", "text": "suit should not have been dismissed but instead other members of the class should have been named as the class representatives. This would indeed have been the proper course if something had happened to deprive the named plaintiffs of standing (or otherwise to render them inappropriate representatives of the class) after the suit had been filed, provided that two conditions were satisfied: that the suit had been certified as a class action, which would make the unnamed class members parties to the suit unless and until they opted out; and that at least one of these unnamed class members had standing. County of Riverside v. McLaughlin, 500 U.S. 44, 51-52, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Nelson v. Murphy, 44 F.3d 497, 500 (7th Cir.1995). What would have saved the suit from dismissal had these two conditions been satisfied would not have been the principle that jurisdiction once acquired is not defeated by a change of circumstances. Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824) (Marshall, C.J.); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1121 (7th Cir.1998). Were that principle applicable, there would be no need to find a class member with standing when the original named plaintiffs lost their standing after the suit was filed. Like most legal generalizations, however, the principle that jurisdiction once acquired is not defeated by a change of circumstances is not exception-less. The chief exception is that the existence of a case or controversy in the Article III sense, that is, a real dispute between parties with tangible stakes in the outcome, Steel Co. v. Citizens for a Better Environment, — U.S.-,---, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), must be continuous from the beginning of the suit to the end. United States Parole Comm’n v. Geraghty, 445 U.S. 388," }, { "docid": "624116", "title": "", "text": "of the plaintiffs has standing. Secretary of the Interior v. California, 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 660 n. 3, 78 L.Ed.2d 496 (1984). The two who filled out applications do. True, if only they are proper plaintiffs, then among the developer defendants only the one to whom those two plaintiffs applied has an actual controversy with a party, and the other developers should be dismissed from the suit. But as we shall be dismissing the suit anyway, it seems unnecessary and ill-advised to get involved in difficult questions of standing that would neither change the outcome nor enable us to avoid a discussion of the merits. A further point is that this suit was certified as a class action, and perhaps the best way to view the named plaintiffs is as candidates for class representative. If at least one plaintiff had standing when the suit was brought and certified as a class action, and if continuously after that there was a live controversy between at least one defendant and one member of the class (not necessarily a named plaintiff), there is federal jurisdiction. Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 558, 42 L.Ed.2d 532 (1975). These conditions are satisfied here. In contesting the standing of the two plaintiffs who filed applications, the defendants point out that eligibility for lower-income housing is not determined until an applicant reaches the head of the waiting list and a vacancy opens up; until then no one can be sure that an applicant would benefit from a favorable decision in this suit. But if the applicant could not sue till there was a vacancy, his suit for an injunction — the premise of which is that the waiting list would be shorter if twice as many apartments were being offered to lower-income families — would be moot as soon as it was ripe. These two plaintiffs claim without contradiction to have satisfied the formal requirements for eligibility, to have made an application, and to have been placed on the waiting list, and they will get to the head" }, { "docid": "7295915", "title": "", "text": "22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824) (Marshall, C.J.); Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1121 (7th Cir.1998). Were that principle applicable, there would be no need to find a class member with standing when the original named plaintiffs lost their standing after the suit was filed. Like most legal generalizations, however, the principle that jurisdiction once acquired is not defeated by a change of circumstances is not exception-less. The chief exception is that the existence of a case or controversy in the Article III sense, that is, a real dispute between parties with tangible stakes in the outcome, Steel Co. v. Citizens for a Better Environment, — U.S.-,---, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), must be continuous from the beginning of the suit to the end. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Church of Scientology v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992). If a case becomes moot, the court loses jurisdiction, even though the ease was not moot when filed. If the district judge was right, these plaintiffs never had standing to bring this suit, and so federal jurisdiction never attached. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Sample v. Aldi Inc., 61 F.3d 544, 551 (7th Cir.1995); Holmes v. Fisher, 854 F.2d 229, 232-33 (7th Cir.1988); Johnson v. Rodriguez, 110 F.3d 299, 315 (5th Cir.1997). That makes this the opposite of a ease in which jurisdiction is challenged by developments after the suit was filed. Certification of a class action comes after the suit is filed, so if the named plaintiffs lacked standing when they filed the suit, there were no other party plaintiffs to step into the breach created by the named plaintiffs’ lack of standing; and so there was no case when" }, { "docid": "23464424", "title": "", "text": "the market in the June Contract, then each member of the class will have to submit a claim for the damages it sustained as a result of the corner. Carnegie v. Household Int’l, 376 F.3d 656, 661 (7th Cir.2004); 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1784 (2009). Some of the class members, discovering that they were not injured at all, will not submit a claim, and others will submit a claim that will be rejected because the claimant cannot prove damages, having obtained off-setting profits from going long. PIMCO argues that before certifying a class the district judge was required to determine which class members had suffered damages. But putting the cart before the horse in that way would vitiate the economies of class action procedure; in effect the trial would precede the certification. It is true that injury is a prerequisite to standing. But as long as one member of a certified class has a plausible claim to have suffered damages, the requirement of standing is satisfied. United States Parole Commission v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980); Wiesmueller v. Kosobucki, 513 F.3d 784, 785-86 (7th Cir.2008). This is true even if the named plaintiff (the class representative) lacks standing, provided that he can be replaced by a class member who has standing. “The named plaintiff who no longer has a stake may not be a suitable class representative, but that is not a matter of jurisdiction and would not disqualify him from continuing as class representative until a more suitable member of the class was found to replace him.” Id. at 786. Before a , class is certified, it is true, the named plaintiff must have standing, because at that stage no one else has a legally protected interest in maintaining the suit. Id.; Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Walters v. Edgar, 163 F.3d 430, 432-33 (7th Cir.1998); Murray v. Auslander, 244 F.3d 807, 810 (11th Cir.2001). And while ordinarily an unchallenged allegation" }, { "docid": "12286944", "title": "", "text": "to a discrete, potentially dispositive issue is an authorized and frequently a sensible method for expediting the decision of cases. Fed.R.Civ.P. 42(b); Thompson v. Mahre, 110 F.3d 716, 720-21 (9th Cir.1997). Separate trials on liability and relief are only the most common application of Rule 42(b). See, e.g., MCI Communications Corp. v. AT&T Co., 708 F.2d 1081, 1166-68 (7th Cir.1983); Saxion v. Titan-C-Manufacturing, Inc., 86 F.3d 553, 556 (6th Cir.1996).) The judge so found and dismissed Robinson’s case. Robinson and Taylor appeal, arguing that the class should be certified with Robinson and Taylor as the class representatives irrespective of the deficiencies in their claims, and in addition that the dismissal of Robinson’s discrimination claim should be reversed. In effect the appeal asks us to graft Robinson’s timely filing with the EEOC onto Taylor’s untimely but not-yet-shown-to-beunmeritorious discrimination case to create a composite plaintiff to represent the class of blacks denied employment by the defendant. We cannot find any basis in law or good sense for such ghastly surgery. Neither plaintiff is a suitable class representative, and zero plus zero is zero. In considering the issue of class certification, we set to one side the results of the bench trial. The fact that the named plaintiff in a class action turns out not to have a meritorious claim does not doom the class action. If Robinson should have been approved as class representative before his bench trial, the fact that he lost at that trial would not be fatal to the class. Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Certification would make the members of the class parties, and one of them could be selected as class representative in place of Robinson. The bench trial was limited to the question whether Robinson had been turned down for innocent reasons, and the circumstances of other class members might be different, in which event the suit could continue — though not (as we are about to see) with him as class representative. So we must focus on the situation as it appeared when the judge ruled" }, { "docid": "6057982", "title": "", "text": "action. The Court finds the numerosity requirement satisfied by the existing class. The question posed to a court examining commonality in class certification is whether there exist questions of law or fact in common such that class-wide adjudication is appropriate. See Fed.R.Civ.P. 23(a). In the present case, several common questions of law and fact exist among the class members. These stem from the alleged actions of the Defendant and alleged co-conspirators engaged in the churning scheme described in the Sixth Amended Complaint. As noted in Peterson v. H & R Block Tax Servs., Inc., 174 F.R.D. 78 (N.D.Ill.1997), “[c]ourts have consistently found a common nucleus of operative facts when the defendants are alleged to have directed standardized conduct toward the putative class members, or where the class claims arise out of standard documents____” Id. at 82 (citations omitted). Such is the case in the present allegations. The Court finds the commonality requirement also satisfied in the existing class. Rule 23 also requires that a named Plaintiffs claims be typical of the claims of the putative class members. When the named plaintiffs to a class action are found to lack the typical characteristics of a class member, the United States Court of Appeals for the Seventh Circuit instructs that the suit should not be dismissed and new class representatives named from the class. See Walters v. Edgar, 163 F.3d 430, 432 (7th Cir. 1998). This would indeed have been the proper course if something had happened to deprive the named plaintiffs of standing (or otherwise to render them inappropriate representatives of the class) after the suit had been filed, provided that two conditions were satisfied: that the suit had been certified as a class action, which would make the unnamed class members parties to the suit unless and until they opted out; and that at least one of these unnamed class members had standing. Id.; see also Cox v. Babcock & Wilcox Co., 471 F.2d 13, 16 (4th Cir.1972) (remanding case back to district court upon dismissal of named plaintiffs ease to permit new class representatives to be selected from the" } ]

[ { "docid": "4064539", "title": "", "text": "so to instruct the jury and no instruction was offered by the defense. Under Rule 52(b), Federal Rules of Criminal Procedure, we could notice this failure as clear error affecting substantial rights of the defendants, but we do not believe this record warrants that action. In determining whether the “clear error” rule should be invoked, the entire record should be considered. Adams v. United States, 375 F.2d 635 (10th Cir. 1967), cert. denied, 389 U.S. 880, 88 S. Ct. 117, 19 L.Ed.2d 173 (1967); Jennings v. United States, 364 F.2d 513 (10th Cir. 1966), cert. denied, 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1967); Wright v. United States, 301 F.2d 412 (10th Cir. 1962); Wright, Federal Practice and Procedure: Criminal § 854; cf. Nutt v. United States, 335 F.2d 817 (10th Cir. 1964), cert. denied, 379 U.S. 909, 85 S.Ct. 203, 13 L.Ed.2d 180 (1964). It has been said that “(p)erhaps the single most significant factor in weighing whether an error was harmful is the strength of the case against the defendant.” Wright, Federal Practice and Procedure: Criminal § 854 at page 358, citing for authority Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In the Kotteakos case, the Court said: “If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. Bruno v. United States, * * * 308 U.S. 287, at page 294, 60 S.Ct. 198, at page 200, 84 L.Ed. 257. But if one cannot 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, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the" } ]

[ { "docid": "3189039", "title": "", "text": "danger to the witness. In fact, the government’s earlier argument that the appellant was familiar with Reinhardt and his locale negates the force of this argument. The appellant asserts further instances of alleged restriction of cross-examination as bases for reversal. We feel it unnecessary to rule on these assertions. We note only that a defendant is entitled broad latitude in cross-examining adverse witnesses. The scope of the direct testimony should not be strictly construed. Cross-examination may be used to bring out facts which tend to contradict, modify or explain the direct examination. Atlantic Greyhound Lines v. Isabelle, 81 U.S.App.D.C. 221, 157 F.2d 260 (1946); Banning v. United States, 130 F.2d 330 (6th Cir.1942), cert. denied, 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556 (1943). See also, United States v. Augustine; 189 F.2d 587 (3rd Cir.1951). In reaching this decision, we are aware that Murphy’s testimony closely paralleled that of Reinhardt and that the restriction compelling reversal was not present in the cross-examination of Murphy. These facts, however, do not persuade us that the error committed was harmless. We cannot say that the error “* * * had but very slight effect.” Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946); Thurman v. United States, 316 F.2d 205 (9th Cir.1963). Nor can we say that the error was “ * * * harmless beyond a reasonable doubt.” Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The “special facts” of Harrington are not present here. The determination of the Court in Harrington that “* * * apart from [the evidence erroneously admitted] the case against Harrington was so overwhelming that * * * this violation * * * was harmless beyond a reasonable doubt * * *” distinguishes that case from the one here. Other than the testimony of Reinhardt and Murphy, there was scant evidence linking the appellant to the alleged offense. The record clearly demonstrates that the relationship between Reinhardt and Murphy was close" }, { "docid": "17591607", "title": "", "text": "discussed infra would have played any role in a trial of Young alone. Nor is it likely that the government would have been permitted to introduce the multitude of tapes concerning solely the other defendants in which they literally convicted themselves out of their own mouths. These facts, when added to the prejudice inherent in any multi-defendant trial, make it possible that Young’s relationship to the other defendants, by reason of his physical presence in the courtroom, injected an element of guilt by association into the jury’s deliberations. See United States v. Branker, 395 F.2d 881, 887-89 (2d Cir. 1968), cert. denied, 393 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 573 (1969); cf. United States v. Kompinski, 373 F.2d 429 (2d Cir. 1967). Our conclusion that Young should have been given a separate trial to avoid undue prejudice does not automatically require reversal. An error that affects no substantial rights of the defendant is thereby rendered harmless and does not constitute grounds for relief. Fed.R.Crim.P. 52(a). Harmlessness is a relative term that requires specific definition in each case by determining the effect on the jury’s verdict of the error’s absence. See Chapman v. California, 386 U.S. 18, 22-23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 762, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Thus, where untainted evidence of guilt is substantial, a greater demonstration of prejudice resulting from an erroneous failure to sever must be made before the error will be considered to require reversal. See Loftis v. Beto, 450 F.2d 599 (5th Cir. 1971) (denial of severance after codefendant confessed was harmless error where evidence of defendant’s guilt was overwhelming and no reasonable jury could have reached a different result at a severed trial). Cf. United States ex rel. Ross v. LaVallee, 448 F.2d 552, 554 (2d Cir. 1971). No evidence could be more inculpatory than the tapes heard by the jury of meetings at which Young arranged to make payments to Granelli and Kibble, and later meetings at which payments were actually made. Young never denied making the payments, but only" }, { "docid": "14764241", "title": "", "text": "to a search of the trunk. The prosecution’s evidence indicates that Burns did consent to a search of the trunk. The issue presented here is whether this search without a warrant was a consent search. Appellant contends that the search cannot be justified as a search, incident to arrest, of the area in the arrestee’s immediate control. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The police officers both testified that neither Miles nor Burns could have gotten into the trunk. The search was therefore unreasonable, and a violation of Miles’ constitutional rights. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The evidence gained by the illegal search was inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The trial court erred in denying appellant’s motion to suppress evidence obtained through an illegal search and seizure. Appellee argues that the judgment of the trial court must be affirmed under the clearly erroneous rule. Officer Ro-dela testified that Burns consented to a search of the trunk. The trial court chose to believe this testimony, rather than that of Miles and Burns. Absent a showing of clear error, the judgment must be affirmed. It is a fundamental principle of Anglo-American jurisprudence that individuals are secure in their persons, houses, papers and effects against unreasonable searches and seizures. This constitutional right, like all others, may be waived by voluntary consent. Wren v. United States, 352 F.2d 617 (10th Cir. 1965), cert. denied 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1966). “In order to constitute a voluntary consent it must clearly appear that the search was voluntarily permitted or expressly invited and agreed to by the person whose rights are involved.” Wren v. United States, supra,. The consent must not be obtained by duress or coercion; the government has the burden of proving the alleged consent. McDonald v. United States, 307 F.2d 272 (10th Cir. 1962). The question of whether consent was given is a question of fact for the trial court to determine and" }, { "docid": "23132439", "title": "", "text": "error by reason of the court’s comments is so prejudicial as to require a new trial is not resolved by a standard of facile application. The rule was stated in a similar context in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), that error is not harmless if there is a “reasonable possibility” that the matter complained of might have contributed to the conviction. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Judge Johnsen of this court observed in Homan v. United States, 279 F.2d 767, 771 (8 Cir. 1960), cert. denied 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88: “Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibility in a strong case, and thus not entitle the defendant to a reversal of his conviction. The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect.” Using these tests we determine that as to each of the defendants there was not sufficient prejudice to require reversal. We view this record as presenting a “strong” case as to each defendant and on balance we cast our judicial doubt that the comments, although improperly made, in any manner influenced the outcome. The trial ran for over seven weeks and the instances of erroneous comments occupy only brief moments in the overall proceedings. It is difficult for appellate judges to place themselves in the subjective role of a juror to assess the prejudicial effect of erroneous comment. Jurors are not isolated machines which may be tested for bias by computerized analysis. They each possess human emotions, reactions" }, { "docid": "6195635", "title": "", "text": "you look in them? Alter: I looked in everything under the counter. Id. at 763-64. Mr. Partin, the defense counsel, then cross-examined Alter: Partin: Agent Alter, did you not testify on your direct examination that you had thought that you had done some searches? Alter: I don’t recall any exact testimony. Partin.- Are you sure now that you did search the counter area? Alter: Yes, I was in the counter area. Partin: And what did you find under that length of counter that you searched? Id. at 764-65. . It is possible, assuming no waiver, that 28 U.S.C. § 2255 may afford an adequate procedure for showing that the government knowingly used perjured testimony to procure the convictions. See United States v. Nero, 733 F.2d 1197, 1207 n. 7 (7th Cir.1984); Norris v. United States, 687 F.2d 899, 900 (7th Cir.1982). . Of course, the district judge in his discretion may exclude prejudicial or confusing statements under Fed.R.Evid. 403. However, the district judge did not invoke Rule 403 to justify his evidentiary ruling. This court, therefore, cannot review the ruling on Rule 403 grounds. United States v. Green, 786 F.2d 247, 252 (7th Cir.1986). . This circuit has considered the overwhelming quality of the evidence of guilt when deciding whether an erroneous evidentiary ruling is harmless. See, e.g., Green, 786 F.2d at 252-53; United States v. Weger, 709 F.2d 1151, 1158 (7th Cir.1983). We must be careful, however, not to rely on the weight of the evidence as the sole basis for finding harmless error. In so doing, we usurp the function of the jury. See United States v. Kotteakos, 328 U.S. 750, 763-64, 66 S.Ct. 1239, 1247-48, 90 L.Ed. 1557 (1946). . The prosecution simply offered recorded conversations and testimony of Bennie’s conversations with DEA agent Gary Alter, in which Bennie said he would be getting the money and a tester before driving to the Peaks’ store where the deal was to have taken place. It is not clear to us that Bennie would have been convicted had the excluded statements been admitted. . Bennie’s final argument on appeal" }, { "docid": "17591608", "title": "", "text": "in each case by determining the effect on the jury’s verdict of the error’s absence. See Chapman v. California, 386 U.S. 18, 22-23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 762, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Thus, where untainted evidence of guilt is substantial, a greater demonstration of prejudice resulting from an erroneous failure to sever must be made before the error will be considered to require reversal. See Loftis v. Beto, 450 F.2d 599 (5th Cir. 1971) (denial of severance after codefendant confessed was harmless error where evidence of defendant’s guilt was overwhelming and no reasonable jury could have reached a different result at a severed trial). Cf. United States ex rel. Ross v. LaVallee, 448 F.2d 552, 554 (2d Cir. 1971). No evidence could be more inculpatory than the tapes heard by the jury of meetings at which Young arranged to make payments to Granelli and Kibble, and later meetings at which payments were actually made. Young never denied making the payments, but only joined the other defendants in their attempt to establish the defense of coercion. Little evidence was introduced to support this theory of coercion and it was contradicted in Young’s case by his suggestion to the investigators of illegal means by which they could make more money. Given this record, we are convinced beyond a reasonable doubt that the jury would have reached the same verdict had Young been tried separately and therefore that his trial with the other codefendants was harmless error. See United States v. Glasser, 443 F.2d 994, 1003 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971). Inadmissible Evidence on the Tapes Ong maintains that throughout the trial the prosecution interjected reference to his activities that were irrelevant to the charges and that these references were so prejudicial and inflammatory as to deprive him of a fair trial. Although the activities mentioned were often those of Ong alone, the other defendants claim that the improper references pervaded the trial and prevented the jury from rendering a verdict" }, { "docid": "11814882", "title": "", "text": "law enforcement agency could only have had a devastating effect on his credibility. The jury received the case after hearing a short charge by the court at 2 p. m. on June 5th. It considered the case all of June 6 until 9 p. m. that evening. At that time the foreman asked the bailiff what he should do if the jury was deadlocked. The court then recessed the jury for the night and on the morning of June 7 read them the Brown charge. The guilty verdict was returned soon thereafter. The fact that the jury was deadlocked is indication of the closeness of the case. The instruction \\delivered to the jury that it should disregard the challenged testimony was not sufficient to remove the prejudice. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We need not stop to consider whether the error here was of constitutional dimension for we cannot dismiss it as harmless even if it was not. We have serious doubt that the verdict was free from substantial prejudicial influence. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). See Fed.R.Crim. Proc. 52(a). If rules of evidence are to command any respect, we must reverse convictions tainted by clear error where there is significant possibility that the accused might have been acquitted in the absence of the error. In the framework of this case certainly such doubt is present. We must, therefore, reverse regardless of our own opinion of Mar-rero’s guilt or innocence. That question is for a jury in a trial not tainted by such inflammatory evidence. Reversed and remanded. . Government brief, p. 20. . Government brief, p. 20. . United States v. Brown, 411 F.2d 930 (7 Cir. 1969). . Marrero argues, with some force, that the error here denied him due process. If the error is constitutional, the case must be reversed unless the error can be classified as harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Since" }, { "docid": "5383763", "title": "", "text": "cross-examination was improper because : 1. the cross-examination was based upon tax returns which were never introduced into evidence. See McKenna v. United States, 232 F.2d 431, 437 (8th Cir. 1956); United States v. Sawyer, 469 F.2d 450, 452 (2d Cir. 1972); Robbins v. Small, 371 F.2d 793, 795 (1st Cir.), cert. denied, 386 U.S. 1033, 87 S.Ct. 1483, 18 L.Ed.2d 594 (1967). 2. the cross-examination, and presumably the tax returns were, “irrelevant, incompetent, immaterial and collateral to .the issues”; 3. the cross-examination exceeded the scope of direct examination as the tax returns related to 1969, but the direct examination related only to 1968. See United States v. Hiken, 458 F.2d 24, 26 (8th Cir.), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 81 (1972). We have serious doubts as to the propriety of this cross-examination which was based upon tax returns never admitted into evidence, particularly when the returns were never signed, never filed, and were unrelated to the taxable year under examination. However, this Court has long held that: “The fact that the cross-examination of a defendant exceeded the bounds of propriety does not call for reversal unless it was prejudicial and amounted to a denial of some substantial right of the defendant.” Davis v. United States, 229 F.2d 181, 186 (8th Cir.), cert. denied, 351 U.S. 904, 76 S.Ct. 706, 100 L.Ed. 1441 (1956). Assuming the cross-examination was improper, we believe beyond a reasonable doubt that it was harmless error for the trial judge to allow it. See generally Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); F.R.Crim.P. 52(a); 3 C. Wright, Federal Practice and Procedure §§ 851-855 at 350-372 (1969). First, with regard to Murray, the tax returns and the examination of Willis demonstrated no more" }, { "docid": "5348488", "title": "", "text": "see text supra at notes 62-72, and the judge authorized it without having information vital to the discretionary determination as to whether an exception was properly to be allowed. Compare Brown v. United States, 125 U.S.App.D.C. 220, 221, 222, 370 F.2d 242, 243, 244 (1966). . See text supra at note 38. . See note 80, supra. . Supra note 13. . 355 U.S. at 480, 69 S.Ct. 213. . The driver was not called as a witness at trial. . Appellant explained that a “hustle” involves illegal activity and “could mean getting money by robbery or housebreaking or any other way.” . Rooks, however, was unable to say just what appellant’s position in the rear of the ear was when the officers arrived. That was because the clothing hanging in the rear of the car blocked his view. . Both of the police officers were still wearing rain gear at the time they gave chase to the robbers. . Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946). . Id., 66 S.Ct. at 1248. . Id. The Court noted possible exceptions “where the departure is from a constitutional norm or a specific command of Congress.” Id. at 764-765, 66 S.Ct. at 1248 (footnote omitted). And see Chapman v. California, 386 U.S. 18, 22-24, 87 S.C. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 D.Ed.2d 284 (1969). . Kotteakos v. United States, supra note 91, 328 U.S. at 765, 66 S.Ct. at 1248. . We are mindful that at appellant’s first trial the jury disagreed, but that hardly shows that the absence of character evidence made a critical difference at the second. It points up, as much as anything else, that even with character testimony at the first trial, not all the jurors entertained a reasonable doubt as to guilt. . See text supra at notes 1-4. . United States v. Johnson, 156 U.S.App.D.C. 28, 29, 475 F.2d 1297, 1298 (1973). . Id. at 29, and n. 2, 475 F.2d at 1298 and n. 2. ." }, { "docid": "18788448", "title": "", "text": "penal interest); United States v. Hunt, 749 F.2d 1078, 1082-84 & n. 8 (4th Cir.1984) (agents’ testimony was probative of government’s motives, which were drawn in issue by due process defense; testimony “did not bear in any way” on entrapment defense), cert. denied, — U.S. -, 105 S.Ct. 3479, 87 L.Ed.2d 614 (1985). C The remaining, and more difficult, question is whether the error proved harmless in light of other, properly admitted evidence. To answer this question, we have reviewed the entire record; we have considered the likely impact of the error on the minds of the jurors, Kotteakos v. United States, 328 U.S. 750, 763-64, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946); and we have asked ourselves whether we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the [ju rors’] judgment was not substantially swayed by the error,” id. at 765, 66 S.Ct. at 1248; accord United States v. Pisari, 636 F.2d 855, 859 (1st Cir.1981); see Fed.R. Crim.P. 52(a) (error harmless if it “does not affect substantial rights”). Compare Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (higher standard for federal constitutional error). To answer these questions, we have located each instance in which Doherty or Vinton brought potentially prejudicial out-of-court statements to the jury’s attention, and compared this testimony with other, corroborative evidence that was properly admitted. Cf. United States v. Indelicato, 611 F.2d 376, 384 (1st Cir.1979). Barrasso’s later, admissible testimony offers only some, not total, corroboration, since the agents’ improper testimony arguably preconditioned the jurors to overvalue Barrasso’s credibility. We shall describe our results in detail, in part to show precisely how inadequate care in the conduct of a trial can convert an overwhelmingly strong prosecution case into a difficult issue on appeal. The following summary sets out the improper testimony and the evidence corroborating it: Event 1: Mazza calls Barrasso on August 7. Out-of-court statement: Vinton testified that Doherty told him that Barrasso told Doherty that “Tony Ramo [an alias for Mazza] had called [Barrasso]" }, { "docid": "17879925", "title": "", "text": "positively that this jumpsuit was one of those pictured in photos of the robbery taken by the bank’s scanning camera. The jumpsuit was paraded before the jury even though the prosecuton himself did not believe that it was used in the robbery. This court has often expressed its concern about the practice of some prosecutors of deliberately injecting prejudicial evidence not properly admitted into criminal trials and thereby jeopardizing otherwise strong cases. See United States v. Millen, 594 F.2d 1085 (6th Cir. 1979); United States v. O’Donnell, 510 F.2d 1190, (6th Cir. 1975) cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975) (concurring opinion); United States v. Smith, 500 F.2d 293 (6th Cir. 1974); United States v. Calvert, 498 F.2d 409 (6th Cir. 1974); United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. King, 378 F.2d 359 (6th Cir. 1967) cert. denied, 396 U.S. 974, 90 S.Ct. 465, 24 L.Ed.2d 443 (1969); United States v. Benson, 369 F.2d 569 (6th Cir. 1966). I believe that the prosecutor in this case engaged in improper over-kill and that this tactic created an atmosphere in the courtroom wherein it was impossible for the defendants to receive a fair trial. See Calvert, supra; Nemeth, supra. While defendants made a motion for a mistrial on the basis of this conduct, at no time did either request a cautionary instruction. Relying on Rule 52(b) F.R.Cr.Pro., defendant Woods contends that, in light of the prosecution’s improper over-kill with the introduction of the guns and ammunition, the court should have instructed the jury on what it could properly consider as evidence in deciding the case and that the court’s failure to so instruct the jury constituted plain error. The majority, did not find plain error here, see Smith, supra, 500 F.2d at 297, Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945), see also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, it should have, at the very least, recognized that this failure had the clear potential to affect" }, { "docid": "22890392", "title": "", "text": "determining whether the in-court testimony was “conducive to irreparable mistaken identification” (emphasis supplied), as Judges Leventhal and Burger seem to have thought in Clemons, 133 U.S.App.D.C. 27, 408 F.2d at 1251; whether such evidence can be considered only as demonstrating harmless constitutional error, as defined in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); or whether in a case like this where the confrontation was pr e-Stovall but the trial post-Stovall, the less stringent test of Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), should be applied, as Judge Wright has proposed for pr e-Stovall trials, Clemons v. United States, supra, 133 U.S.App.D.C. 27, 408 F.2d at 1253. Taking the view most fa vorable to Phipps, we would find the admission of Mattson’s testimony to have been harmless beyond a reasonable doubt. Affirmed. . We commend this practice, see United States v. Ravich, 421 F.2d 1196 (2 Cir. 1970), which relieves defense counsel confronted with a court-room identification of having to decide his course of cross-examination concerning previous identifications without knowing whether this may help or hurt. See United States v. Wade, supra, 388 U.S. at 240-241, 87 S.Ct. 1926, 18 L.Ed.2d 1149. We suggest that the district courts consider the formulation of a rule on this subject similar to that adopted in the District of Columbia. See Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1237 and n. 4 (1968). . In Simmons v. United States, supra, 390 U.S. at 384, 88 S.Ct. at 971, the Court said that identification at trial following pre-trial identification by photograph would “be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” It is not clear whether the slightly changed wording was intended to announce a different standard or was merely an adaptation to the different problem. Foster v. California, 394 U.S. 440, 442, 89 S.Ct." }, { "docid": "12097925", "title": "", "text": "qualified under Article 25(d)(2) of the Code, 10 USC § 825(d)(2)— were capable of deciding whether Theresa was biased or motivated by money or was instead seeking justice in pursuing her claims against SFC Bins. While a military judge’s concern for delaying proceedings with members is always warranted, these matters could have been covered on cross-examination in an efficient manner. Finally, with credibility or impeaching evidence, “the danger of unfair prejudice to the Government is greatly diminished.” 25 MJ at 289. Considering these factors, we hold that the military judge abused his discretion by excluding the evidence under Mil.R.Evid. 403. 33. We hold that appellant’s rights to cross-examine the witness against him and to present his defense were improperly limited. See United States v. Lonedog, 929 F.2d 568, 570 (10th Cir.) (“defendant’s right to confrontation may be violated if the trial court precludes an entire relevant area of cross-examination”), cert, denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991). But prejudice is not presumed from these errors, so we will test for prejudice. United States v. Williams, 40 MJ 216, 218 (CMA 1994), cert. denied, — U.S. -, 115 S.Ct. 737, 130 L.Ed.2d 639 (1995). B. Harmless Error 34. Before this Court will hold that a federal constitutional error did not prejudice an appellant, we “must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See United States v. Bonavita, 21 USCMA 407, 409, 45 CMR 181, 183 (1972); United States v. Ward, 1 MJ 176, 180 (CMA 1975); United States v. Woolheater, 40 MJ at 172. Our focus is not on whether the members were right, in their findings but, rather, on whether the error had or reasonably may have had an effect upon the members’ findings. Cf. Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557 (1946) (harmless-error review of a nonconstitutional error requires an analysis of the effect of the error in the trial court). Here, the military judge’s" }, { "docid": "5383764", "title": "", "text": "that the cross-examination of a defendant exceeded the bounds of propriety does not call for reversal unless it was prejudicial and amounted to a denial of some substantial right of the defendant.” Davis v. United States, 229 F.2d 181, 186 (8th Cir.), cert. denied, 351 U.S. 904, 76 S.Ct. 706, 100 L.Ed. 1441 (1956). Assuming the cross-examination was improper, we believe beyond a reasonable doubt that it was harmless error for the trial judge to allow it. See generally Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); F.R.Crim.P. 52(a); 3 C. Wright, Federal Practice and Procedure §§ 851-855 at 350-372 (1969). First, with regard to Murray, the tax returns and the examination of Willis demonstrated no more than that she was paid $8,000 for full-time legal employment. The inference to be drawn from the examination is neutral, and perhaps beneficial to the defense. We fail to understand what the Government was trying to prove by this examination, but cannot conceive that it harmed Willis in any way. Second, as to Williams, the Government apparently sought to suggest that she was paid an exorbitant amount of money for part-time work, thus tending to prove that she was paid by Willis for illicit activity. Williams had already testified at great length that she worked as a prostitute for Willis. Charles Hubbard, an employee of Willis during part of the time in question, testified that he saw Willis give Williams, Murray and a woman by the. name of Pat, money. He further testified that the women gave Willis money. Moreover, he testified that he had personal knowledge that prostitution was going on where Willis resided. In light of this strong eye witness testimony, it is a remote possibility, at the very best, that the cross-examination" }, { "docid": "13986973", "title": "", "text": "him until after the detainer was lodged. There are no contentions or showings before us that the delay impaired Ramirez’s ability to defend, or his ability to recollect with detailed clarity the events of the week of the crime. We have considered Hoskins v. Wainwright, 440 F.2d 69 (5th Cir. 1971), and United States v. Harmon, 379 F.Supp. 1349 (D.N.J.1974), cited by Ramirez as supportive of his contention that he was denied his right to a speedy trial. However, the eight and one-half year delay in Hoskins and the six year delay in Harmon present factual situations distinctly distinguishable from the ten month delay occasioned here. We do not deem these decisions controlling. We are not inclined, as Ramirez urges, to utilize our “supervisory powers” [United States v. Crawford, 466 F.2d 1155 (10th Cir. 1972)] to correct an injustice caused by federal officers. The delay was not prejudicial to Ramirez. See United States v. Goeltz, 513 F.2d 193 (10th Cir. 1975); United States v. MacKay, 491 F.2d 616 (10th Cir. 1973), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974); United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973); United States v. Taylor, 465 F.2d 1199 (10th Cir. 1972). Most of the decisions involving claims of deprivation of due process rights require specific showing of identifiable prejudice to the accused affecting his substantial rights. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Quinones Gonzalez, 452 F.2d 964 (10th Cir. 1971); Rule 52(a), Fed.R.Crim.P., 18 U.S. C.A. There must, at the least, be proof of a probability that prejudice will result from that which is deemed inherently lacking in due process. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). No such probability has been displayed here. We affirm. . Section 841(a)(1) provides: (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally— (1) to manufacture, distribute, or dispense, or possess with intent to" }, { "docid": "23132438", "title": "", "text": "a fair and imparital trial is protected and preserved. If counsel, who are officers of the court, violate the canons of ethics and offend the bounds of propriety, adequate disciplinary sanctions are available. But absent circumstances not revealed in this record, the trial judge should guard against engaging in remarks or conduct in the presence of the jury which can and may have a prejudicial effect upon the jury. Chief Judge Lurnbard observed in United States v. Guglielmini, 384 F.2d 602, 605 (2 Cir. 1967), where a trial judge used similar reproachful comments to defense counsel: “[T~}hese remarks can only have served to discredit the defense in the eyes of the jury. * * * This discussion also discredited the defense and may have led the jury to believe that the defense was making demands which improperly imposed upon the government. “The trial judge’s frequent participation in the trial, by questions and comments, also tended to give the jury the impression that he credited the prosecution and disbelieved the defense.” (Emphasis ours.) Whether or not error by reason of the court’s comments is so prejudicial as to require a new trial is not resolved by a standard of facile application. The rule was stated in a similar context in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), that error is not harmless if there is a “reasonable possibility” that the matter complained of might have contributed to the conviction. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Judge Johnsen of this court observed in Homan v. United States, 279 F.2d 767, 771 (8 Cir. 1960), cert. denied 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88: “Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any" }, { "docid": "12547094", "title": "", "text": "defendant’s victims, was questionable); United States v. Sidman, 470 F.2d 1158 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973), (other evidence consisting of eyewitness testimony was not strong). Further, unlike the situation in Fahy v. Connecticut, supra, and in Chapman, supra, we note that here the State’s case against Chase was not merely “woven from circumstantial evidence” but, rather, was supported by eyewitness testimony. See, Harrington v. California, supra; United States v. Mancino, 468 F.2d 1350 (8th Cir. 1972). Finally, we think it significant to note that this allegedly “tainted” evidence was merely cumulative of other evidence properly presented to the jury. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, supra; United States v. Mancino, supra; Glazerman v. United States, 421 F.2d 547 (10th Cir. 1970), cert. denied, 398 U.S. 928, 90 S.Ct. 1817, 26 L.Ed.2d 90 (1970); Pinelli v. United States, 403 F.2d 998 (10th Cir. 1968), cert. denied, 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 (1969). Assuming, arguendo, that the challenged evidence was inadmissible, still, based upon our review of the whole record, we hold that any error arising from the use of this evidence was harmless beyond a reasonable doubt in that “an average jury” would not have found the State’s case “significantly less persuasive” had the evidence been excluded. See also, Kalmbach v. Jones, 488 F.2d 134 (5th Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2614, 41 L.Ed.2d 218 (1974). III. Finally, Chase alleges that the State Court’s error in admitting the illegally seized evidence was “compounded” by the Court’s receiving into evidence testimony relating to separate offenses allegedly committed by the defendant contemporaneously with the “possession” offense for which he was not then on trial (i. e., evidence that he had assaulted, kidnapped, robbed and attempted oral sodomy with Johnston). We fail to see how the latter alleged error “compounds” the former. Further, even assuming that the introduction of evidence as to “other crimes” constituted error standing on its own, we hold that, considering the" }, { "docid": "8648105", "title": "", "text": "that I didn’t have no record. Q: Do you mean that you have never — you have never been convicted— MR. FREEMAN (attorney for Monteer): Just a moment, Mr. Moody. THE COURT: Come up, gentlemen. After a short colloquy between the court and the attorneys, the court denied appellant’s motion for a mistrial and instructed the jury to disregard Coonce’s last answer. Counsel for appellant urges that the government’s questioning and Coonce’s answer enabled the government to place before the jury prejudicial evidence that Monteer had a criminal record since one can infer that if Coonce was driving because he had no record, the other two defendants, Boyle and Monteer, were not driving because they did have records. We find no error. The trial judge appropriately observed: “the response does not carry the full impact that you [Monteer’s attorney] import to it.” The judge likewise was on sound ground in observing that the prosecutor did not act in bad faith in interrogating Coonce. In our view Monteer has magnified the subject questions and answers beyond all proportions. Defense counsel has attributed prejudicial error to an innocuous incident, which in our judgment did not have any adverse impact on the jury. In any event, if we assume arguendo that Coonce’s remark was improper, the error did not affect the substantial rights of the appellant. Rule 52(a) Fed. R.Crim.P.; Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Moreover, even if Coonce’s statement was an impropriety of constitutional magnitude, it is clear beyond a reasonable doubt that any error was harmless. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Coonce’s statement was a fleeting one, and the jury was instructed by the court to disregard it. Moreover, the inference from Coonce’s statement that appellant had a criminal record was indirect at best, and it is not at all clear that the members of the jury would have even realized that Coonce had indirectly made reference to appellant’s criminal record. In addition to the two issues already discussed, Monteer raises a number" }, { "docid": "8648106", "title": "", "text": "all proportions. Defense counsel has attributed prejudicial error to an innocuous incident, which in our judgment did not have any adverse impact on the jury. In any event, if we assume arguendo that Coonce’s remark was improper, the error did not affect the substantial rights of the appellant. Rule 52(a) Fed. R.Crim.P.; Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Moreover, even if Coonce’s statement was an impropriety of constitutional magnitude, it is clear beyond a reasonable doubt that any error was harmless. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Coonce’s statement was a fleeting one, and the jury was instructed by the court to disregard it. Moreover, the inference from Coonce’s statement that appellant had a criminal record was indirect at best, and it is not at all clear that the members of the jury would have even realized that Coonce had indirectly made reference to appellant’s criminal record. In addition to the two issues already discussed, Monteer raises a number of points in his various pro se briefs to this court: that his arrest at home was illegal and in violation of the fourth and fourteenth amendments, and that a preindictment lineup is a critical stage requiring the presence of counsel. The lineup question has been resolved above. The remaining pro se contentions have been examined. They lack substance. In summary, we find no basis for reversal and remand. Accordingly, the judgment of conviction is affirmed. . Monteer stipulated that the deposits of the b Corporation. ik were insured by the Federal Deposit Insurance . Judge Hunter concluded: I am satisfied from all of the evidence in this case that the Motion to Suppress Identification, and I note that it simply moves the Court for an order suppressing the use of any identification of the defendant Monteer by Eunice Friedly, is without merit and is overruled upon my specific finding, first, that the identification by Eunice Friedly of this defendant, Martin William Monteer, is, as a matter of fact, totally independent of both and each" }, { "docid": "15248737", "title": "", "text": "Amalbert there to get them that morning. At trial, Amalbert testified that in addition to his transportation duties, he had sold boots for appellant to people in the book company building. Appellant challenges the search at the book company but does not challenge the initial search of Amalbert’s car. Thus, the seizure of the boots at the book company (assuming arguendo that it violated the fourth amendment) could be viewed simply as “harmless error,” Fed.R.Crim.P. 52(a), Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), since the Government had ample proof of its case from the search of Amalbert’s car together with Amalbert’s testimony. However, we find no error in the search that was conducted here in the course of a diligent investigation. Before searching the basement, agent McMullen obtained the consent of the highest officer of the book company then on the scene. Although appellant had supervisory power over the wired-in area, access to it was not exclusively his, running also to his superior, the vice president. Consent to a search is effective when given by one whose right to occupancy or possession is at least equal to that of the person contesting the search. Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945). Valid consent to the search having been given, the cases cited by appellant for the proposition that warrantless searches are to be discouraged are inap-posite. Chambers v. Moroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), involved, inter alia, the noncon-sensual search of an automobile at a police station sometime after the arrest. Vale v. Louisiana, 399 U.S. 30, 34-35, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), specifically lists consent as one of those “few specially established and well-delineated exceptions,” in which warrantless searches of dwellings and a fortiori business establishments are constitutionally allowed. The record shows that Mr. Steubin gave his consent “ . freely and voluntarily . . . . ” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788," } ]

[ { "docid": "22699782", "title": "", "text": "considered . in terms of any additional physical or mental restrictions they may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone. While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship' between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. [Emphasis in original.] The parties also agreed that the Secretary will transmit the agreed-upon language to adjudicators within the Eighth Circuit responsible for determining disability, including personnel in state and district offices, and personnel within the Social Security Administration, AUs, and the Appeals Council. The language is to be transmitted no later than July 18, 1984. This Court agrees with the above language as a correct statement of the law concerning the evaluation of pain and other subjective complaints for determining disability. This language thus serves as a correct restatement of our case law, to be followed in all administrative and judicial proceedings within the Eighth Circuit. This order" } ]

[ { "docid": "22276064", "title": "", "text": "claimant’s RFC, the ALJ must evaluate his or her credibility and take into account all relevant evidence. See Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); 20 C.F.R. §§ 404.1545, 416.945. Guilliams argues that the ALJ incorrectly determined that his RFC included the ability to do some types of “light work” as defined in the Social Security regulations. See 20 C.F.R. §§ 404.1567(b); 416.967(b). He alleges that, in reaching this conclusion, the ALJ improperly discredited his complaints of pain and disregarded the evidence provided by one of his examining physicians. We conclude that the ALJ’s determination that Guilliams’s complaints of pain were exaggerated was supported by substantial evidence, and that he gave sufficient weight to the evidence of Guil-liams’s examining physicians. A claimant’s subjective complaints may be discounted if there are inconsistencies in the record as a whole. 20 C.F.R. §§ 404.1529, 416.929; McKinney v. Apfel, 228 F.3d 860, 864 (8th Cir.2000); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). In evaluating subjective complaints, however, the ALJ must consider objective medical evidence, as well as any evidence relating to the so-called Pola-ski factors, namely: (i) a claimant’s daily activities; (ii) the duration, frequency, and intensity of the claimant’s pain; (iii) precipitating and aggravating factors; (iv) dosage, effectiveness, and side effects of medication; and (v) functional restrictions. Polaski, 739 F.2d at 1322. In rejecting a claimant’s complaints of pain as not credible, we expect an ALJ to “detail the reasons for discrediting the testimony and set forth the inconsistencies found.” Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir.2003). We believe that substantial evidence supports the ALJ’s decision to discount Guilliams’s claims of disabling pain. Guilliams complained of numbness and tingling in his hands, (R. at 204), occasional pain in his heels, (R. at 317), and chronic pain in his wrists, arms, back, and legs. (R. at 204, 306). Guilliams alleged in particular that he suffered from severe back pain that radiated into both legs. (R. at 306). The ALJ concluded, however, that Guilliams’s complaints of pain were inconsistent with substantial medical evidence and other evidence. During several examinations" }, { "docid": "20872012", "title": "", "text": "activities was not consistent with the activities of an individual experiencing severe, intractable pain. Because he found that Jeffery had the residual functional capacity necessary to perform her past relevant work as a poultry inspector or assembly-line worker, he concluded she was not disabled. The Appeals Council affirmed the decision. The district court summarily affirmed, finding the decision to be supported by substantial evidence. We disagree. Judicial review of disability determinations is limited to assessing whether there is substantial evidence in the record as a whole to support the Secretary’s decision. 42 U.S.C. § 405(g) (Supp. III 1985); Bogard v. Heckler, 763 F.2d 361, 362-63 (8th Cir.1985). This review requires more than a search for the existence of substantial evidence supporting the Secretary’s decision, but rather must take into account evidence which fairly detracts from its weight. Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir.1987). Although the AU may disbelieve a claimant’s allegations of pain, credibility determinations must be supported by substantial evidence. See Hardin v. Heckler, 795 F.2d 674, 676 (8th Cir.1986). In Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984) (subsequent history omitted), this court set out the factors to be considered in evaluating a claimant’s subjective allegations of pain. The AU must decide if the claimant’s complaints of pain are consistent with his or her prior work record and the observations of third parties and examining physicians regarding (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions. Id. at 1322. Although the AU may discount the subjective complaints of pain if there are inconsistencies in the evidence as a whole, he may not do so solely because the complaints are not fully supported by the objective medical evidence. Id. Moreover, the AU must make express credibility determinations and set forth the inconsistencies in the record that lead him to reject the claimant’s complaints. See Douthit v. Bowen, 821 F.2d 508, 509 (8th Cir.1987). Finally, it is not enough for the record to contain inconsistencies" }, { "docid": "22786488", "title": "", "text": "No. 2 in SSR-82-58 to allow allegations of pain to be disregarded solely because the allegations are not fully corroborated by objective medical findings typically associated with pain. The example should not be construed to be inconsistent with the text of SSR-82-58 which states in part: The effects of symptoms must be considered in terms of any additional physical or mental restrictions they may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone. While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. [Emphasis in original.] Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984). On July 17, 1984, this Court issued an order approving the language as a correct statement of the law under the Social Security Act and of the case law in the Eighth Circuit. On July 18, 1984, the Secretary disseminated the approved language to all adjudicators" }, { "docid": "22786489", "title": "", "text": "just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. [Emphasis in original.] Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984). On July 17, 1984, this Court issued an order approving the language as a correct statement of the law under the Social Security Act and of the case law in the Eighth Circuit. On July 18, 1984, the Secretary disseminated the approved language to all adjudicators — state district offices, state DDS offices, and AUs in the Eighth Circuit. It disseminated the same information to the Appeals Council. Thereafter, this Court permitted the parties to file supplemental briefs to explain how the agreement on the pain standard, as approved by this Court, affected this litigation. The government’s brief stated: The approved language is simply a clarification of SSR 82-58, which is the Secretary’s instructional ruling on the evaluation of pain and other subjective complaints. This point is made clear by the specific reference in the approved language to SSR 82-58 and the fact that errors in cases involving pain may have been the result of misinterpretations of the SSR and specifically Example No. 2 in the SSR. * * * (“[SJome adjudicators have misinterpreted the Secretary’s policies enunciated in SSR-82-58”; and “some adjudicators may have misinterpreted Example No. 2 in SSR-82-58”). That the approved language is a clarification of SSR 82-58 is further reinforced by the fact that the Secretary’s regulations and SSR 82-58 require that pain and other subjective complaints" }, { "docid": "3970452", "title": "", "text": "the credibility of a claimant’s subjective testimony, are primarily for the Secretary to decide, not the courts.” Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir.1987). “Substantial evidence” to support a finding of nondisability means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. Where the evidence as a whole can support either outcome, the Secretary’s decision must be affirmed. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir.1984). Rautio asserts that the AU erroneously discredited his subjective complaints of severe, intractable, disabling pain by failing to properly apply the standards set forth in Polaski v. Heckler, 739 F.2d 1320 (order), supplemented, 751 F.2d 943 (8th Cir.1984), vacated, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974, adhered to on remand, 804 F.2d 456 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987). Polaski provides: The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency, and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. 739 F.2d at 1322. Before a claimant’s subjective allegations of pain may be discounted, “the AU must make express credibility determinations and set forth the inconsistencies in the record that lead the AU to reject the claimant’s complaints of pain.” Brock v. Secretary of HHS, 791 F.2d 112, 114 (8th Cir.1986). Although the AU may disbelieve a claimant’s allegations, credibility determinations must be supported by substantial evidence. See Hardin" }, { "docid": "23034040", "title": "", "text": "Act if they have an 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). Once claimants show their inability to perform their former job due to their disability, the burden then shifts to the Secretary to prove that they can perform some other kind of substantial gainful activity. Jackson v. Schweiker, 696 F.2d 630, 631 n. 1 (8th Cir.1983); Tucker v. Schweiker, 689 F.2d at 779. Jelinek contends that there is not substantial evidence to support the Secretary’s finding that he could perform light work. First, he argues that the Secretary failed to give adequate consideration to his complaints of pain. Under the Social Security Act as recently amended by Congress, [a]n individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- 42 U.S.C. § 423(d)(5). In Polaski v. Heckler, 751 F.2d 943, 950 (8th Cir.1984), we analyzed the legislative history of this statute and concluded that all pain cases in the Eighth Circuit are" }, { "docid": "3566119", "title": "", "text": "(W.D.N.C.2000) (ruling the deletion of § 9.09 is the law in effect for the appeal). Thus, the Court rules Parent’s argument regarding the ALJ’s decision that Parent did not meet or equal § 9.09 of the Listings of Impairments is moot because § 9.09 is no longer applicable to the present case. Parent also argues the ALJ committed reversible error by improperly deriving a Residual Functional Capacity (“RFC”) for Parent that was unsupported by any evidence in the record, ignoring the standard established by SSR 96-8p, and failing to consider Parent’s subjective limitations. In response, the Commissioner argues the ALJ correctly evaluated Parent’s pain and subjective complaints using the Polaski v. Heckler test and 20 C.F.R. §§ 404.1529 and 416.929. In evaluating the credibility of testimony and complaints of pain, a district court is instructed to consider all of the evidence presented regarding the subjective complaint of pain. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Included in the factors a court may consider is “the absence of objective medical evidence to support the degree of severity of the subjective complaints [of pain].” Id. The adjudicator is also instructed to consider the claimant’s prior work record and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. Id. In the present appeal, the ALJ “considered the effects of the claimant’s alleged impairments, pain and other symptoms in accordance with the criteria set forth in the regulations.” Tr. at 18. The ALJ found Parent to suffer from “impairments that could reasonably be expected to produce some of the symptoms alleged, but the claimant’s complaints suggest a greater severity of impairment than can be shown by the objective medical evidence alone .” Tr. at 18. An ALJ may properly rely upon the discrepancies between the complainant’s allegations of pain and the medical treatment and daily activities. See Davis v. Apfel, 239 F.3d 962, 968 (8th Cir.2001). As" }, { "docid": "2341904", "title": "", "text": "F.2d 401, 403 (8th Cir.1993); 42 U.S.C. § 423(d)(1). In this case, the Secretary concluded that appellant was not disabled because he was able to perform his past relevant work as a barber. Appellant contends that the ALJ improperly applied the Polaski factors in rejecting appellant’s subjective complaints of pain and functional restrictions. In Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), this Court held that a lack of objective medical evidence to support the claimant’s subjective complaints is only one factor to be considered in evaluating the claimant’s testimony. In addition, The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional restrictions. Id. at 1322. Appellant contends that the ALJ erred in rejecting his subjective complaints of pain. In his view, the ALJ improperly relied upon isolated statements from the medical evidence to discredit his testimony. We find that the Secretary’s decision — that McClees is able to perform his past relevant work as a barber — is supported by substantial evidence. The ALJ evaluated the limited medical evidence and appellant’s subjective complaints. Using this information, the ALJ concluded that appellant’s allegations regarding his inability to work prior to June 30, 1980, were not credible. The ALJ noted that the only pertinent medical evidence relating to the appellant’s medical condition before June 30, 1980, was a discharge summary from the University of Nebraska Medical Center. This summary showed that the appellant had been treated for a skinned elbow. The report then noted the appellant’s severe scoliosis and chest deformity, but indicated that McClees had been “fairly asymptomat ic.” The report indicated that upon physical examination, McClees’s extremities revealed good strength and no evidence of motor dysfunction, muscle atrophy, muscle spasm, abnormal reflex changes, or sensory deficits. The ALJ noted the inconsistency between this" }, { "docid": "23034042", "title": "", "text": "to be evaluated on the basis of the amended statute, the pain regulation in 20 C.F.R. § 404.1529, and the Secretary’s ruling SSR 82-58 as clarified in the settlement agreement set forth in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984). In particular, adjudicators are to consider the claimant’s prior work record and observations by third parties and physicians concerning: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; and 5. functional restrictions. Further, [t]he adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Id. Jelinek complains of chronic pain surrounding the incision in his chest which his doctors have diagnosed as post-thoracoto-my neuralgia, or intercostal neuritis. He testified that physical activity aggravates the pain, and results in stiffness through his left side “like a board in there * * * my whole chest * * * just pulled together.” Jelinek stated that walking and sitting for extended periods of time also aggravate his pain. His daily activities consist of gardening, tending a small herd of sheep, and making knots. He also goes fishing when someone else goes along to handle the boat. He testified that he can carry a twenty-pound bag of groceries, but moving the bag five or six times increases his pain. Jelinek occasionally takes aspirin or tyle-nol for relief. One of his physicians prescribed the pain killers amitriptyline and fluphenazine, which he takes only rarely. Both Jelinek’s wife and son corroborated his testimony that he experiences pain and restricted movement. There are extensive medical reports in the record. Although all of the physicians note that Jelinek suffers pain due to neuralgia, they differ as to the degree or disabling nature of the pain. A March 14, 1978, report by Dr. Ronald Bergom notes that Jelinek claims to have pain over the posterior shoulder area and the wrist area, but I see no" }, { "docid": "5528066", "title": "", "text": "to work. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir.2005); Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir.2001). Substantial evidence supports the ALJ’s conclusion Schultz’s ankle did not meet a listed impairment. B. Polaski Analysis Additionally, Schultz argues the ALJ failed to properly perform an analysis under Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984). “[Schultz’s] subjective complaints may be discounted if there are inconsistencies in the record as a whole.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.2005). We will defer to an ALJ’s credibility finding as long as the “ALJ explicitly discredits a claimant’s testimony and gives a good reason for doing so.” Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.2001) (quoting Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir.1990)). Under Polaski, to evaluate Schultz’s subjective complaints of pain, the ALJ, in addition to considering “[t]he absence of an objective medical basis which supports the degree of severity of subjective complaints,” Polaski, 739 F.2d at 1322, must examine “the claimant’s prior work record and observations of third parties and physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.” Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir.2006). Although the ALJ never expressly cited Polaski (which is our preferred practice), the ALJ cited and conducted an analysis pursuant to 20 C.F.R. §§ 404.1529 and 416.929, which largely mirror the Polaski factors. See Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir.2004). Specifically, the ALJ found the objective medical evidence did not support Schultz’s subjective complaints and Schultz had a good work history. The ALJ also found (1) Schultz spends most days sitting at home watching television, although this is by choice and not for any medical reason; (2) the signs of chronic and severe musculoskeletal pain are not present; (3) nothing exists regarding precipitating and aggravating factors; (4) medications control Schultz’s hypertension, nausea, and vomiting, and Schultz neither takes strong doses of pain medication nor experiences adverse side-effects;" }, { "docid": "23034041", "title": "", "text": "must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- 42 U.S.C. § 423(d)(5). In Polaski v. Heckler, 751 F.2d 943, 950 (8th Cir.1984), we analyzed the legislative history of this statute and concluded that all pain cases in the Eighth Circuit are to be evaluated on the basis of the amended statute, the pain regulation in 20 C.F.R. § 404.1529, and the Secretary’s ruling SSR 82-58 as clarified in the settlement agreement set forth in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984). In particular, adjudicators are to consider the claimant’s prior work record and observations by third parties and physicians concerning: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; and 5. functional restrictions. Further, [t]he adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Id. Jelinek complains of chronic pain surrounding the incision in his chest which his doctors have diagnosed as post-thoracoto-my neuralgia, or intercostal neuritis. He testified that physical activity aggravates the pain, and results in stiffness through his left side “like a board in there * * *" }, { "docid": "8544278", "title": "", "text": "the evidence of Holley’s noncompliance within the context of his analysis of Holley’s credibility. The ALJ never determined that Holley was disabled and that compliance would restore Holley’s ability to work. By contrast, the ALJ determined that in spite of Holley’s noncompliance, Holley was not disabled. The ALJ used the evidence of Holley’s noncompliance solely to weigh the credibility of Holley’s subjective claims of pain. Social Security Ruling 82-59 does not restrict the use of evidence of noncompliance, it merely delineates the reasons that the Social Security Administration may deny benefits to an otherwise disabled person because they fail to comply with their doctor’s prescribed treatment. Therefore, Social Security Ruling 82-59 does not apply to this case. Third, Holley argues that the ALJ did not properly analyze Holley’s subjective complaints of pain according to Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). According to Polaski the ALJ must consider the claimant’s prior work record, observations by third parties, and observations by treating and examining physicians as they relate to (1) the daily activities of the claimant; (2) the duration, frequency, and intensity of pain; (3) precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; and (5) functional restrictions. Id. In this case, the ALJ did not cite Polaski. However, the ALJ did cite the proper regulations and he correctly listed the relevant factors that should be considered in assessing the credibility of claimant’s subjective complaints. The ALJ considered Holley’s daily activities, Holley’s prior work record, observations by his treating physician, the duration and frequency of his pain, the precipitating and aggravating factors, the effectiveness of medication, and functional restrictions. In fact, at the beginning of his decision the ALJ listed all of the Polaski factors. No error arises from the ALJ’s evaluation of Holley’s subjective complaints of pain. B. After the claimant has established that she is unable to perform her past relevant work, the burden shifts to the Commissioner to show that the claimant has the physical residual capacity to perform a significant number of other jobs in the national economy that are consistent" }, { "docid": "6436277", "title": "", "text": "functional capacity, she nonetheless could perform jobs that existed in significant numbers in the economy (e.g., work as an assembly line worker or cashier). Id. at 22. Applying the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (subsequent history omitted), the ALJ concluded that Sullins’ subjective complaints of pain were not credible and that there were no signs of an ongoing mental impairment. Ad.Tr. at 20, 22. The district court agreed, finding that there was substantial evidence on the record as a whole to support the ALJ’s finding that Sullins was not disabled within the meaning of the Social Security Act. II. Sullins urges reversal of the district court’s order, arguing the evidence on the record as a whole was not substantial to support the ALJ’s finding that her subjective complaints of pain were not credible. Alternatively, she urges us to remand the case with instructions to obtain vocational expert testimony that sheds light on her mental impairments (as described in Dr. Fowler’s psychiatric report) — evidence that might well have, had it been timely introduced, established that Sullins was in fact disabled. The facts of this case prevent us from doing either. The ALJ’s findings as to both Sul-lins’ allegations of pain and her mental impairments are sound. We will affirm the district court’s decision only if there is substantial evidence on the record ,as a whole to support the ALJ’s findings. See 42 U.S.C. § 405(g); Smith v. Heckler, 735 F.2d 312, 315 (8th Cir.1984). When determining the credibility of a claimant’s allegations of subjective pain, the ALJ must consider the claimant’s prior work record, observations by third parties, and diagnoses by treating and examining physicians relating to such matters as (1) claimant’s daily activities; (2) duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medications; and (5) functional restrictions. Polaski 739 F.2d at 1322. Although an ALJ cannot disregard a claimant’s subjective complaints of pain solely because the objective medical evidence does not fully support them, such complaints may be discounted if" }, { "docid": "15624149", "title": "", "text": "your functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(3) (1996). The relevant portion of the second C.F.R. section the plaintiffs cite is 20 C.F.R. § 416.929(c)(3) (1996) and it contains precisely the same language as 20 C.F.R. § 404.1529(c)(3) (1996). The above quoted material appears to mean that, ceteris paribus, both subjective and objective medical evidence should be considered when determining disability and neither type of evidence should necessarily trump the other. The plaintiffs also cite the ubiquitous Polaski case. In Polaski, the Eighth Circuit held: The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosages, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Polaski, 739 F.2d at 1322. The language set out above also indicates that both subjective and objective medical evidence should be considered when determining disability and neither type of evidence is necessarily superi- or to the other. Upon juxtaposing the language in the C.F.R. sections cited above with the Eighth Circuit language in Polaski, it is apparent the Polaski language is simply a condensed paraphrasing of the federal regulations. For all intents and purposes, therefore, the Eighth Circuit’s subsequent interpretations of Polaski will also control this court’s interpretation of 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) (1996). On the other hand, the plaintiffs take" }, { "docid": "22139496", "title": "", "text": "results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. 42 U.S.C. § 423(d)(5)(A) (1988). This language parallels the language employed- in the Secretary’s regulations and the legislative history of the amendments confirms that Congress was codifying the Secretary’s standard for evaluating pain. . The Senate Report on the amendments stated that the statutory standard was “identical to the current rule applied by the Administration.” S.Rep. No. 466, supra, at 3. Similarly, the Conference Report provided: “The statutory language providing for an interim standard for evaluation of pain is amended to more accurately reflect current policies.” H.R.Conf. Rep. No. 1039, 98th Cong., 2d Sess. (1984), reprinted in 1984 U.S.C.C.A.N. 3038, 3086-87. In Polaski v. Heckler, 751 F.2d 943, 948-49 (8th Cir.1984), vacated on other grounds, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974 (1986), the Secretary articulated the regulatory policy on evaluating pain at the time of statutory codification: A claimant has the burden of provihg that the disability results from a medically determinable physical or mental impairment. Symptoms such as pain, shortness of breath, weakness, or nervousness are the individual’s own perceptions of the effects of a physical or mental impairment(s). Because of their subjective characteristics and the absence of any reliable techniques for measurement, symptoms (especially pain) are difficult to prove, disprove, or quantify. As a result of this difficulty, some adjudicators have misinterpreted the Secretary’s policies as enunciated in SSR-82-58. [Emphasis added [in Polaski].] In particular, some adjudicators" }, { "docid": "2341903", "title": "", "text": "ALJ, however, denied appellant’s application for Title II benefits, finding that appellant was not under a “disability” at anytime when he met the earnings requirement. McClees filed an appeal in federal district court. By order, dated December 17, 1991, the judge affirmed the Secretary’s denial of benefits. Appellant seeks review of the denial of Title II benefits. Because the appellant’s medical history is set forth in detail in our previous opinion, see McClees I, supra at 451, we turn directly to a review of the Secretary’s decision on remand. Our task is limited to a determination of whether the Secretary’s decision is supported by substantial evidence in the record as a whole. Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir.1992). “Substantial evidence is that which a reasonable mind might accept as adequate to support the Secretary’s conclusion.” Id. (quoting Whitehouse v. Sullivan, 949 F.2d 1005, 1007 (8th Cir.1991)). The claimant bears the burden of proving a medically determinable impairment or impairments which prevented him from performing his past relevant work. Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir.1993); 42 U.S.C. § 423(d)(1). In this case, the Secretary concluded that appellant was not disabled because he was able to perform his past relevant work as a barber. Appellant contends that the ALJ improperly applied the Polaski factors in rejecting appellant’s subjective complaints of pain and functional restrictions. In Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), this Court held that a lack of objective medical evidence to support the claimant’s subjective complaints is only one factor to be considered in evaluating the claimant’s testimony. In addition, The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; (5) functional restrictions. Id. at 1322. Appellant contends that the ALJ erred in rejecting his subjective complaints of pain." }, { "docid": "2097249", "title": "", "text": "v. Shalala, 38 F.3d 1019, 1022 (8th Cir.1994). If, after undertaking this review, we determine that “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Secretary’s] findings, we must affirm the decision” of the Secretary. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992). Siemers contends that the ALJ improperly discredited her complaints of disabling pain in assessing whether she suffered from a severe impairment or combination of impairments. An ALJ must consider a claimant’s subjective complaints of pain in conformity with the standard adopted by this court in Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir.1984) (subsequent history omitted). Pursuant to Polaski, an ALJ may not discount a claimant’s subjective complaints of pain solely because no objective medical evidence exists to support its existence. Id. at 1322; see also 20 C.F.R. § 404.1529(c)(2). Rather, the ALJ is allowed to consider this evidence along with the claimant’s work history and observations by third parties and treating physicians relating to: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) any aggravating factors; (4) the dosage, effectiveness, and side effects of any medication; and (5) functional restrictions. Polaski, 739 F.2d at 1322. The ALJ “must give full consideration to all of the evidence presented relating to subjective complaints” and is not free to discredit those complaints unless they are inconsistent with the evidence contained in the record as a whole. Id. An ALJ who determines that a claimant’s testimony regarding pain is not credible must make specific findings outlining the reasons supporting that conclusion. Ghant v. Bowen, 930 F.2d 633, 637 (8th Cir.1991). In the present case, the ALJ specifically delineated the Polaski factors and determined that, given the inconsistencies in Siemers’ testimony, her daily activities, and the medical evidence of record, her testimony concerning pain was not credible. The ALJ specifically set forth the following inconsistencies: Siemers complains of intense back pain but the clinical findings have been minimal; on one occasion she dated the onset of her low back pain at 20-30 years ago," }, { "docid": "1169000", "title": "", "text": "or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or other laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability- See 42 U.S.C. Section 423(d)(5)(A). This standard is not inconsistent with the Gonzales standard upon which the district court based its decision, even though the Reform Act is more specific in its language. Nyman urged that this circuit should adopt the standard of pain set forth by the Eighth Circuit in Polaski v. Heckler, 739 F.2d 1320 (8th Cir.1984), as stated at page 1322: While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The Polaski opinion goes on to point out on the same page that “[sjubjective complaints may be discounted if there are inconsistencies in the evidence as a whole.” The ALJ had reason to discount Nyman’s contentions as to the degree of pain he was experiencing because the medical evidence was conflicting and Nyman’s testimony lacked credibility. The AU found that Ny-man was experiencing" }, { "docid": "22786491", "title": "", "text": "be evaluated according to the following factors: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosage, effectiveness and side effects of medication; 5. functional restrictions. See SSR 82-58, Addendum D to Opening Brief at 3. The approved language identifies the same factors and similarly requires their consideration in the evaluation of subjective complaints of pain. * * * In sum, the approved language is merely a restatement of the standard which the Secretary has been following all along. [Emphasis added, citations omitted.] On September 19, 1984, Congress passed the Social Security Disability Benefits Reform Act of 1984. That Act amended the existing law with respect to evaluation of pain. It provides: EVALUATION OP PAIN SEC. 3. (a)(l)[.] Section 223(d)(5) of the Social Security Act is amended by inserting after the first sentence the following new sentences: “An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability.” (2) Section 1614(a)(3)(H) of such Act (as added by section 8 of this Act) is amended by striking out “section 221(h)” and inserting in lieu thereof “sections 221(h) and 223(d)(5)”. (3) The amendments made by paragraphs (1)" }, { "docid": "15624150", "title": "", "text": "examining physicians relating to such matters as: 1. the claimant’s daily activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and aggravating factors; 4. dosages, effectiveness and side effects of medication; 5. functional restrictions. The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole. Polaski, 739 F.2d at 1322. The language set out above also indicates that both subjective and objective medical evidence should be considered when determining disability and neither type of evidence is necessarily superi- or to the other. Upon juxtaposing the language in the C.F.R. sections cited above with the Eighth Circuit language in Polaski, it is apparent the Polaski language is simply a condensed paraphrasing of the federal regulations. For all intents and purposes, therefore, the Eighth Circuit’s subsequent interpretations of Polaski will also control this court’s interpretation of 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) (1996). On the other hand, the plaintiffs take issue with other pertinent language in the Code of Federal Regulations. For example, 20 C.F.R. § 404.1529(a) (1996) provides: In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence____ We will consider all of your statements about your symptoms, such as pain, and any description you, your physician, your psychologist, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted a.s consistent with the medical signs and laboratory" } ]

[ { "docid": "13396561", "title": "", "text": "the Consumer Credit Protection Act, 18 U.S.C. § 891 et seq., evidenced that Congress did not believe that the States alone could foil loansharking. In United States v. Sheridan, 329 U.S. 379, 384, 67 S.Ct. 332, 334-35, 91 L.Ed. 359 (1946), the legislative history of the National Stolen Property Act, 18 U.S.C. § 2314, indicated that Congress wanted to help the States “in detecting and punishing criminals” who “make a successful getaway and thus make the state’s detecting and punitive processes impotent.” Recently, the Supreme Court concluded that there are three broad areas of activity that Congress may regulate under its commerce power. United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 1629, 131 L.Ed.2d 626 (1995) (citing Perez, 402 U.S. at 150, 91 S.Ct. at 1359). First, Congress may oversee the use of the channels of interstate commerce. Id. (citations omitted). Second, Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though any threat to them may only emanate from intrastate activities. Id. (citations omitted). Finally, Congress has the power to regulate those activities which substantially affect interstate commerce. Id. (citations omitted). Black and Davis rely heavily on Lopez. Black maintains that the CSRA lacks a jurisdictional nexus to interstate commerce. More specifically, he argues that the CSRA does not fall into any of the three permissible areas discussed in Lopez because the failure to pay child support: (1) is not a misuse of the channels of interstate commerce; (2) does not put the instrumentalities of interstate commerce at risk; and (3) does not “substantially affect” interstate commerce. Davis primarily argues that those circuits that have found that the CSRA is constitutional under the second prong of Lopez have stretched Supreme Court jurisprudence in order to find a way to uphold the CSRA. We disagree. The CSRA is a facially valid exercise of congressional power under the Commerce Clause. It regulates the nonpayment of interstate child support obligations. Thus, at the very least, the CSRA regulates a “thing” in interstate commerce and therefore falls within the second category" } ]

[ { "docid": "7581292", "title": "", "text": "firearm, which had moved in or affected interstate commerce, by a person subject to a protective order prohibiting family violence in violation of 18 U.S.C. § 922(g)(8)(count three). Following a jury trial, Pierson was convicted of all three counts. The district court sentenced the defendant to ninety-seven months for count one, thirty years for count two, and ninety-seven months for count three. The terms of imprisonment for counts one and three are to be served concurrently with each other and consecutively with count two. II. The defendant contends that 18 U.S.C. § 922(g)(8) is an unconstitutional exercise of congressional power that violates the principles enunciated in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Specifically, Pierson argues that possession of a firearm while subject to a protective order prohibiting domestic violence does not substantially affect interstate commerce. The district court, however, upheld the constitutionality of the statute by denying the defendant’s Motion to Dismiss the Indictment. In reviewing constitutional challenges to federal statutes, we apply a de novo standard of review. See United States v. Bailey, 115 F.3d 1222, 1225 (5th Cir.1997). In United States v. Lopez, the Court held that a related statutory prohibition outlawing the possession of a gun in a school zone, 18 U.S.C. § 922(q), was unconstitutional under the Commerce clause. See United States v. Lopez, 514 U.S. 549, 557-69, 115 S.Ct. 1624, 1629-34, 131 L.Ed.2d 626 (1995). The Court identified the following three broad areas of activity over which Congress may constitutionally exercise its commerce power: (1) Congress may regulate the use of the channels of interstate commerce; (2) Congress may regulate and protect the instrumentalities of, or persons or things in interstate commerce; and (3) Congress may regulate activities substantially affecting interstate commerce. Id. at 557-59, 115 S.Ct. at 1629. In holding § 922(q) unconstitutional, the Court determined thát the intrastate possession of a firearm, without more, could not be regulated as a channel or instrumentality of interstate commerce, or a person or thing in interstate commerce. See Lopez, at 559-61, 115 S.Ct. at 1630. Thus, the intrastate" }, { "docid": "8049308", "title": "", "text": "S.Ct. 1732, 1733, 131 L.Ed.2d 714 (1995)(per curiam)(“The ‘affecting commerce’ test was developed in our jurisprudence to define the extent of Congress’s power over purely mirastate commercial activities that nonetheless have substantial mferstate effects.”). Therefore, because the Court had no occasion in Lopez to reach the question, 514 U.S. at 561-62, 115 S.Ct. at 1630-31, it remains the law that where a federal criminal statute contains a jurisdictional element requiring proof that an object was “in or affecting” commerce, the government need only meet the “minimal nexus” test enunciated in Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977). Blais, 98 F.3d at 649 (“Scarborough is still good law after Lopez.”). Because the government proved below that the ammunition cartridge had moved in interstate commerce, the district court correctly denied Cardoza’s motion to dismiss Count I. B. 18 U.S.C. § 922(x) Raising a question of first impression in this circuit, Cardoza next urges us to extend the Lopez reasoning to his conviction under the Youth Handgun Safety Act (“YHSA”), codified at 18 U.S.C. § '922(x). Because we find that the YHSA regulates the national juvenile market in handguns by prohibiting certain intrastate activities, it is a proper exercise of Congress’ authority. See United States v. Michael R., 90 F.3d 340, 343-45 (9th Cir.1996)(upholding YHSA against Lopez-based Commerce Clause challenge). The Commerce Clause gives Congress the power to “regulate Commerce ... among the several States.” U.S. Const., art. I, § 8, cl. 3. The Supreme Court has recognized three categories of activities which Congress may reach under this provision. Lopez, 514 U.S. at 558-59, 115 S.Ct. at 1629-30. First,- Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, those activities that- substantially affect interstate ' commerce. Id. Our review of a statute’s constitutionality under" }, { "docid": "1458969", "title": "", "text": "Taylor’s conviction. B. 18 U.S.C. § 2119 and the Commerce Clause Taylor argues that 18 U.S.C. § 2119, the federal carjacking statute under which he was convicted, exceeds congressional authority under the Commerce Clause. The Commerce Clause confers upon Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States.” U.S. Const. Art. I, § 8, cl. 3. From 1937 to 1995, the Supreme Court consistently upheld federal legislation against claims that Congress had overstepped its authority under the Commerce Clause. See Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); Wickard v. Filburn, 317 U.S. 111, 128-29, 63 S.Ct. 82, 87 L.Ed. 122 (1942); United States v. Darby, 312 U.S. 100, 118, 61 S.Ct. 451, 85 L.Ed. 609 (1941); National Labor. Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937). However, the Court ended this fifty-eight-year quiescence with United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Overturning the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(l)(A), the Lopez Court identified “three broad categories of activity that Congress may regulate under its commerce power”: (1) “Congress may regulate the use of the channels of interstate commerce”; (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; (3) “Congress’ commerce authority includes the power to regulate those activities having substantial relation to interstate commerce.” Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624 (citation omitted). The statute in Lopez criminalized the knowing possession of a firearm in a school zone, but did not contain a jurisdictional element that .linked the criminalized conduct to interstate commerce or established any substantial relationship to interstate commerce. 18 U.S.C. § 922(q)(l)(A) (1988 & Supp. V). The Court struck the statute as unconstitutional because it “is a criminal statute that by" }, { "docid": "22262712", "title": "", "text": "asserts that in enacting § 2261(a)(1), Congress exceeded its power under the Commerce Clause. U.S. Const. art. I, § 8. We review for plain error because this challenge is made for the first time on appeal. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Knowles, 29 F.3d 947, 950-51 (5th Cir.1994). In order to reverse, we must find that the district court committed an error; that error was “plain”—i.e., “clear” or “obvious”; that the plain error affected Lankford’s substantial rights; and that it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting Olano, 507 U.S. at 736, 113 S.Ct. 1770). In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Court set forth three broad categories of activity Congress may regulate consistent with its Commerce Clause power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) those activities substantially affecting interstate commerce. 514 U.S. at 558-59, 115 S.Ct. 1624. Intrastate activities falling within the third category could be regulated if those activities were economic in nature, id. at 559-61, 115 S.Ct. 1624, or if Congress included a jurisdictional element that allowed for case-by-case assessment of whether the regulated activities substantially affected interstate commerce. Id. at 561, 115 S.Ct. 1624. Lankford asserts that § 2261(a)(1) punishes conduct that is purely intrastate, private, and noncommercial, and that has no substantial effects on interstate commerce. He also characterizes the provision as an attempt to regulate purely local activities in a manner contrary to the principles of federalism. In making these arguments, it is clear that Lankford defines the regulated conduct as domestic violence and places that conduct in the third of Lopez’s categories. We find that Congress was well within its Commerce Clause power in enacting § 2261(a)(1). The provision properly falls within the first of Lopez’s categories as it regulates the use of channels of interstate commerce—i.e., the use of “the interstate transportation routes through" }, { "docid": "22972323", "title": "", "text": "Congress’ commerce clause power is derived from Article I, § 8 of the United States Constitution, which provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, els. 1 & 3. The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), synthesized and articulated the boundaries of this power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited possession of a firearm within a thousand feet of a school. In striking down the statute, the Court observed that there were “three broad categories of activity that Congress may regulate under its commerce power”: (1) “Congress may regulate the use of channels of interstate commerce”; (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ie., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624 (internal citations omitted). Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce. This Court further explained the proper boundaries of Congress’ ability to regulate the channels and instrumental-ities of interstate commerce in United States v. Ballinger, 395 F.3d 1218 (11th Cir.2005) (en banc). In Ballinger, we re viewed among others, the constitutionality of a federal statute that criminalized church-based arson where the “offense is in or affects interstate or foreign commerce.” Id. at 1224 (quoting 18 U.S.C. § 247(b)) (emphasis added). We upheld the statute against a commerce clause challenge, recognizing that “[pjlainly, congressional power to regulate the channels and instrumentalities of commerce includes the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs" }, { "docid": "5180510", "title": "", "text": "to register under state law provides notice of the duty to register under SORNA); Hinckley, 550 F.3d at 938 (same); United States v. Shenandoah, 572 F.Supp.2d 566, 580 (M.D.Pa. 2008) (citing cases), aff'd, 595 F.3d 151 (3rd Cir.2010). This Court agrees. Hence, Cotton’s due process argument is rejected, d. Commerce Clause Lastly, Cotton argues that the penalty provision of SORNA, 18 U.S.C. § 2250, exceeds Congress’s authority under the Commerce Clause. The Commerce Clause of the U.S. Constitution gives Congress the power “[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” U.S. Const. art. I, § 8, cl. 3. The Supreme Court has identified three general categories of activity that Congress may regulate under the Commerce Clause: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted); see also Gonzales v. Raich, 545 U.S. 1, 16-17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); United States v. Morrison, 529 U.S. 598, 608-09, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Cotton contends that the enforcement provision of SORNA cannot be justified under the first two Lopez prongs because it does not regulate the channels of interstate commerce or concern the regulation of persons or things in interstate commerce. Def.’s Mot. at 29-30. Therefore, the argument goes, it must be evaluated under the third Lopez prong, which permits only the regulation of “those activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558, 115 S.Ct. 1624. Cotton asserts that a sex offender registry is akin to regulation of domestic violence, which the Supreme Court has ruled lacks a substantial relation to interstate commerce. See Morrison, 529 U.S. at 612-13, 120" }, { "docid": "23115911", "title": "", "text": "PER CURIAM: William Andrew Scott appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) . Scott raises only one issue on appeal. He argues that the felony-in-possession statute is an invalid exercise of Congress’ Commerce Clause power because possession of a firearm by a convicted felon is not conduct which has a substantial impact on interstate commerce. In support of his position, he relies on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). For the reasons stated below, we reject his constitutional challenge and affirm his conviction under 18 U.S.C. § 922(g)(1). We review the constitutionality of statutes de novo. See United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir.2000). The Commerce Clause of the United States Constitution states in pertinent part: “The Congress shall have the power ... [t]o regulate Commerce with foreign Nations, and among the several states.” U.S. Const. art. 1, § 8. Under the framework established by United States v. Lopez, Congress permissibly may regulate three broad categories of activity under the Commerce Clause. First, Congress may regulate the use of the channels of interstate commerce. Lopez, 514 U.S. at 558, 115 S.Ct. at 1629. Second, the Commerce Clause empowers Congress to regulate and protect the instrumentalities of interstate commerce, or persons or things in inter state commerce, even if the threat may derive only from intrastate activities. See id., 115 S.Ct. at 1629. Lastly, Congress’ commerce power includes the authority to regulate activities with a “substantial relation to interstate commerce.” Id. at 558-59, 115 S.Ct. at 1629-30. When Lopez was convicted of violating the Gun-Free School Zones Act, 18 U.S.C. § 922(q), the Supreme Court reversed his conviction and invalidated the statute, reasoning that § 922(q) was an invalid exercise of Congress’ Commerce Clause power. Lopez identified at least three considerations in analyzing 922(q). First, the Court found that" }, { "docid": "16435252", "title": "", "text": "such power instead in the states. The Constitution, however, expressly granted Congress the power “to regulate Commerce with foreign Nations, and among the several States ...” Art. I, § 8, cl. 3. Since 1937, the scales of the federal courts’ Commerce Clause jurisprudence tipped more towards according to Con gress “considerably greater latitude in regulating conduct [including federal criminal statutes].” See Morrison, 529 U.S. at 608, 120 S.Ct. 1740, rather than to maintaining a distinction between “what is truly national and what is truly local.” Id. at 617-18, 120 S.Ct. 1740; Lopez, 514 U.S. at 567-68, 115 S.Ct. 1624. A new era emerged with the Court’s decisions in Lopez and Morrison, which clarified the legal standards applicable to a constitutional challenge under the Commerce Clause. Based on those two landmark cases, it is now clear, that while courts still maintain a wide degree of deference to Congress’s power to enact legislation pursuant to the Commerce Clause, such power is now subject to certain “outer limits.” Lopez, 514 U.S. at 556-67, 115 S.Ct. 1624; see also Ho, 311 F.3d at 596. With that in mind, we begin our analysis of the current facts. 2. The Commerce Clause Our consideration of Bredimus’s assertion that Congress exceeded the “outer limits” of the Commerce Clause must begin with Lopez. In Lopez, the plaintiff brought a challenge to the constitutionality of the Gun-Free School Zones Act of 1990, § 922(q)(2)(a), which made it a federal crime to have a gun within 1,000 feet of a school. The Lopez Court summarized three broad categories of activity that Congress may properly regulate under its commerce power: (1) “the use of the channels of interstate commerce,” (2) “the in-strumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) “activities having a substantial relation to interstate commerce, i.e., activities that ‘substantially affect’ interstate commerce.” Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. In Lopez, the Court found Section 922(q) unconstitutional because that criminal statute merely regulated firearms near schools, and thus, had no substantial effect on" }, { "docid": "16733730", "title": "", "text": "Supreme Court’s Commerce Clause Jurisprudence In our dual system of government, the federal government is limited to its enumerated powers, while all other powers are reserved to the states or to the people. U.S. Const, amend. X. States have authority under their general police powers to enact minimum coverage provisions similar to the one in the Affordable Care Act. See Mass. Gen. Laws Ann. ch. 111M, § 2 (West 2011). However, the federal government has no police power and may enact such a law only if it is authorized by one of its enumerated powers. See, e.g., United States v. Lopez, 514 U.S. 549, 566, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Our task is to review the district court’s conclusion that Congress properly relied on its authority under the Commerce Clause to enact the minimum coverage provision. Recognizing that uniform federal regulation is necessary in some instances, the Commerce Clause of the Constitution grants Congress the power “[t]o regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art. I, § 8, cl. 3. The Supreme Court has held that Congress has broad authority to regulate under the Commerce Clause. From 1937 to 1994 it did not invalidate a single law as unconstitutional for exceeding the scope of Congress’s Commerce Power. The Court has explained that Congress’s Commerce Clause power encompasses three broad spheres: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and (3) “those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce.” Lopez, 514 U.S. at 558-59,115 S.Ct. 1624. Because the United States does not contend that the minimum coverage provision falls within either of the first two categories, we proceed to consider whether the provision falls within Congress’s power to regulate activities that substantially affect interstate commerce. Current Supreme Court jurisprudence reveals that Congress may use this category of its Commerce Power to regulate two related classes of activity. First, it has long been established that Congress" }, { "docid": "13018911", "title": "", "text": "child custody, areas “where States historically have been sovereign.” United States v. Lopez, 514 U.S. 549, 564, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Homaune’s description of the crime, however, omits a key element: that the defendant “retains a child (who has been in the United States) outside the United States” with the described mens rea. 18 U.S.C. § 1204(a) (emphasis added). That parenthetical jurisdictional hook saves the statute under the Foreign Commerce Clause. The Federal Government holds limited powers, and Congress can act only if the Constitution enumerates a power that authorizes its action. The sole congressional power that the Government relies on to defend § 1204 is the Commerce Clause. The Commerce Clause gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, cl. 3. The Foreign Commerce Clause is at least as broad as the more familiar Interstate Commerce Clause. See Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979) (“Although the Constitution, Art. I, § 8, cl. 3, grants Congress power to regulate commerce ‘with foreign Nations’ and ‘among the several States’ in parallel phrases, there is evidence that the Founders intended the scope of the foreign commerce power to be the greater.”). In Lopez, the Supreme Court listed “three broad categories of activity that Congress may regulate” under its interstate commerce power: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. 514 U.S. at 558-59, 115 S.Ct. 1624 (citations omitted); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 2578, 183 L.Ed.2d 450 (2012). If Congress defines a crime so that every violation fits" }, { "docid": "22441459", "title": "", "text": "adduced no evidence that Mr. Riccardi ever sold or traded the photographs, or. that the photographs were ever mailed, shipped, or transported across state lines.” Aplt. Br. 46. Under Mr. Riccardi’s theory, to impose criminal ■ liability for these actions pursuant to Congress’ authority under the Commerce Clause would exceed the authority granted Congress by the Constitution. The Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const. Article I, § 8. This power, while broad, is not without limit. As the Court noted in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 194-95, 6 L.Ed. 23 (1824), as “[cjomprehensive as the word ‘among’ is, it may be very properly restricted to that commerce which concerns more States than one.... The enumeration presupposes something not enumerated; and that something, if we regard the language, or the subject of the sentence, must be the exclusively internal commerce of a State.” In recent years, the Supreme Court has rendered several decisions defining the reach of Congress’ authority under the Commerce Clause. See, e.g., United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court noted that, in using power to regulate interstate commerce, Congress may regulate “three broad categories” of activities: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. 514 U.S. at 558-59, 115 S.Ct. 1624 (internal citations omitted). For our purposes, at least in the abstract, it would seem that the possession of home-produced child por nography concerns neither the channels nor the instrumentalities of interstate commerce. It follows, then, that the possession of child pornography must “substantially affect interstate commerce” in order for" }, { "docid": "22245210", "title": "", "text": "631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). Even then, we will exercise our discretion to rectify the error only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781). Because the sale of firearms to felons is an economic activity that substantially affects interstate commerce, we conclude that Congress acted within its commerce power in enacting § 922(d)(1), and thus that the district court committed no error in entering a judgment of conviction. A. We begin our review by recalling the important principle that “[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Accordingly, we are obliged to evaluate § 922(d) “[w]ith this presumption of constitutionality in mind.” Id. The Commerce Clause, Article I, § 8 of the United States Constitution, provides that “[t]he Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, els. 1 & 3. Contemporary Commerce Clause jurisprudence acknowledges “three broad categories of activity that Congress may regulate under its commerce power.” United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). First, Congress is empowered to “regulate the use of the channels of interstate commerce”; second, Congress properly may “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and finally, Congress is authorized “to regulate those activities having a substantial relation to interstate commerce, ie., those activities that substantially affect commerce.” Id. at 558-59, 115 S.Ct. 1624; see also United States v. Ballinger, 395 F.3d 1218, 1225-26 (11th Cir.2005) (en banc) (discussing these categories). This third Lopez category, we have observed, “is the broadest expression of Congress’ commerce power.” Ballinger, 395 F.3d at 1226. Our focus" }, { "docid": "14539160", "title": "", "text": "one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and reserved his right to challenge the constitutionality of the statute. See Fed. R.Crim. Pro. 11(a)(2). As part of a plea agreement, Adams admitted the following facts: 1. On October 22, 1999, a search was conducted at the home of defendant STEVEN ADAMS. At the time of the search, ADAMS was in possession of a computer and a number of computer diskettes. 2. The computer diskettes and computer contained components that were not manufactured in the State of California. 3. The computer diskettes and computer contained visual depictions of minors engaged in sexually explicit conduct. 4. The production of the visual depictions involved the use of minors engaging in sexually explicit conduct. 5. The images include depictions of actual children. Adams now appeals. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial of Adams’s motion to dismiss the indictment and its determination of the constitutionality of the statute. United States v. Cortes, 299 F.3d 1030, 1032 (9th Cir.2002). II A Adams first argues that Congress is powerless to enact a statute criminalizing intrastate possession of child pornography. To decide whether 18 U.S.C. § 2252(a)(4)(B) is a valid exercise of congressional power under the Commerce Clause, we examine the recent Supreme Court decisions of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), which set forth the relevant analytical framework. [1] Lopez “identified three broad categories of activity that Congress may regulate under its commerce power”: (1) the channels of interstate commerce, (2) the instrumentalities of interstate com merce, and (3) “those activities that substantially affect interstate commerce.” 514 U.S. at 558-59, 115 S.Ct. 1624. Of course, the possession of child pornography concerns neither the channels nor the instrumentalities of interstate commerce. It follows that the possession of child pornography must “substantially affect interstate commerce” in order for Congress to regulate it under the Commerce Clause. In Morrison, the Court" }, { "docid": "22229049", "title": "", "text": "this statute pursuant to the Commerce Clause, which allows Congress “to regulate Commerce with foreign Nations, and among the several States.” U.S. Const, art. I, § 8, cl. 3. Cortes argues that Congress exceeded its Commerce Clause authority by enacting a statute to govern carjacking — a purely local offense, having nothing whatsoever to do with interstate commerce. To support his contention, Cortes relies upon the Supreme Court’s recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000); and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In Lopez, the Supreme Court assessed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(l)(A), which made it a federal crime “for any individual knowingly to possess a forearm at a place that the individual knows ... is a school zone.” 514 U.S. at 551, 115 S.Ct. 1624 (citation omitted). After extensively surveying the history of Commerce Clause jurisprudence, the Court identified three broad categories of activity that Congress may regulate: (1) “the channels of interstate commerce;” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and (3) “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624 (citation omitted). The relevant category in Lopez was Congress’s ability to regulate gun possession as an activity that substantially affects interstate commerce. The Court noted that the gun possession statute was not limited to any “discrete set of firearm possessions ... [with] an explicit connection with or effect on interstate commerce.” Id. at 562, 115 S.Ct. 1624. It “eontainfed] no jurisdictional element which would ensure, through a case-by-case inquiry, that the [conduct] in question affectfed] interstate commerce.” Id. at 561, 115 S.Ct. 1624. Nor was the gun possession statute defensible as “an essential part of a larger regulation of economic activity.” Id. at 561, 115 S.Ct." }, { "docid": "206053", "title": "", "text": "fighting statute provides in relevant part that “it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” 7 U.S.C. § 2156(a)(1). The statute sets forth the following definition of an “animal fighting venture”: [T]he term ‘animal fighting venture’ means any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment. .. . 7 U.S.C. § 2156(g)(1). Thus, as this definition plainly illustrates, a conviction for violating the animal fighting statute requires (a) that the activity be in or affect interstate or foreign commerce, and (b) be for purposes of sport, wagering, or entertainment. C. We next discuss the Commerce Clause, and the Supreme Court’s construction of Congress’ powers under that constitutional provision. The Commerce Clause delegates to Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” U.S. Const, art. I, § 8, cl. 3. The Supreme Court’s “interpretation of the Commerce Clause has changed as our Nation has developed,” and Congress currently enjoys “greater latitude in regulating conduct and transactions under the Commerce Clause than” previous Supreme Court cases had permitted. Morrison, 529 U.S. at 607-08, 120 S.Ct. 1740 (citing United States v. Lopez, 514 U.S. 549, 552-57, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)). Under the Court’s “modern era” of Commerce Clause jurisprudence, as described in Lopez and Morrison, Congress may broadly regulate three categories of activity under its Commerce Clause powers: (1) “the use of the channels of interstate commerce,” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) “those activities having a substantial relation to interstate commerce.” Morrison, 529 U.S. at 609, 120 S.Ct. 1740 (citing Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624). Under the Court’s precedents, if a “rational basis exists] for concluding that a regulated activity sufficiently affect[s] interstate commerce,” then a challenge to Congress’ power under the Commerce Clause" }, { "docid": "15812307", "title": "", "text": "violation of the Commerce Clause in three ways. First, Congress exceeded its authority by regulating noncommercial activity; second, RLUIPA is a congressional attempt to regulate purely intrastate activity; and third, RLUIPA improperly imposes the burden of proof on the government. Under the Commerce Clause, Congress has the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” U.S. Const. Art. I, § 8. The power includes “the power to regulate; that is to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” United States v. Lopez, 514 U.S. 549, 553, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). After the Supreme Court’s decision in Lopez, it is clear that Congress has the power to regulate three areas of commerce. They include: (1) regulating the use of the channels of interstate commerce; (2) regulating to protect the instrumentalities or persons or things involved in interstate commerce, even if the threat being regulated against arises from intrastate activity; and (3) regulating activities with a substantial relation to interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. 1. Congressional Regulation of NonCommercial Activity The relevant language of RLUIPA limits the applicability of RLUIPA to when a regulation directly affects interstate commerce, the third area of permissible Congressional regulation. Under Lopez a congressional regulation may demonstrate an effect on interstate commerce in one of two ways. The first is when the statute includes a jurisdictional element that requires a case-by-case analysis of whether there is an effect on interstate commerce. The second covers regulations of expressly commercial activity. Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (striking firearms possession law because it neither dealt with economic activity nor included a jurisdictional element). RLUIPA falls within the first category because, before it can be applied, it requires a case-by-case analysis of whether the regulation placing a substantial burden on religious activity affects interstate commerce. Statutes that contain a" }, { "docid": "7312717", "title": "", "text": "at 16, raising the issue of whether the statutory language contemplates offenses like Ballinger’s. The first two questions are easily resolved, and we address them at the outset; the third is more involved, and is at the heart of this case. A. We review the constitutionality of a statute de novo. United States v. Scott, 263 F.3d 1270, 1271 (11th Cir.2001). To determine whether § 247 is a valid exercise of Congress’ commerce power, we begin with an overview of the nature of that power. Article I, § 8 of the United States Constitution provides that “The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, els. 1 & 3. The Supreme Court’s landmark decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which issued shortly before Congress amended § 247 in 1996, synthesized more than a century of Commerce Clause activity into a definitive description of the commerce power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1988 ed., Supp. V), which prohibited possession of a firearm within a thousand feet of a school. Because the statute criminalized intrastate conduct without including any jurisdictional hook to “ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce,” Lopez, 514 U.S. at 561, 115 S.Ct. 1624, the Court found that it exceeded the scope of Congress’ commerce power. In reaching this conclusion, Chief Justice Rehnquist, writing for the Court, laid out “three broad categories of activity that Congress may regulate under its commerce power”: “First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instru-mentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ie., those activities that substantially affect interstate" }, { "docid": "17552719", "title": "", "text": "FAGG, Circuit Judge. Using a camera made in Japan, James Donald Bausch took pictures of two girls,, aged fifteen and sixteen, depicting “the girls in nude poses including exposed genitals, sexually suggestive scenes, and scenes simulating oral sex.” (Presentence Report at 1.) The girls were models for Bausch’s drawings, and Bausch used the photographs in the girls’ absence. After the grandmother of one of the girls called the authorities, Bausch was convicted of possessing three or more photographs of minors engaged in sexually explicit conduct, see 18 U.S.C. § 2252(a)(4)(B) (1994), which includes both actual or simulated oral sex, see id. § 2256(2)(A), and “lascivious exhibition of the genitals or pubic area,” id. § 2256(2)(E). The district court sentenced Bausch to probation. Bausch appeals his conviction, challenging the constitutionality of § 2252(a)(4)(B). We reject Bausch’s Commerce Clause and First Amendment arguments and affirm. Bausch first contends Congress exceeded its authority to regulate commerce among the States when it enacted § 2252(a)(4)(B), making intrastate possession of child pornography a federal crime. See U.S. Const. Art. I, § 8, Cl. 3. According to Bausch, Congress lacks power to regulate the possession of sexually explicit photo graphs of minors when the photographs have not traveled in interstate commerce and are not intended to be placed in commerce. We review the constitutionality of the statute de novo. See United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.), cert. denied, — U.S. -, 118 S.Ct. 341, 139 L.Ed.2d 264 (1997). The Commerce Clause gives Congress power to regulate three types of activity: (1) use of the channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities; and (3) activities that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 1629-30, 131 L.Ed.2d 626 (1995). Section 2252(a)(4)(B) is a proper exercise of Congress’s commerce power under the third category. See United States v. Robinson, 137 F.3d 652, 655-56 (1st Cir.1998). Section 2252(a)(4)(B) prohibits the knowing possession of three or more “books, magazines," }, { "docid": "5214724", "title": "", "text": "Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction. Id. § 1951(b)(3). Due to the requirement that a Hobbs Act offense “obstructs, delays, or affects” interstate commerce, “the reach of the Hobbs Act is coextensive with that of the Commerce Clause of the United States Constitution.” United States v. Walker, 657 F.3d 160, 179 (3d Cir.2011) (quotation marks omitted). The Commerce Clause delegates to Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. In United States v. Lopez, which involved a challenge to the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(g)(1)(A), the United States Supreme Court held that there are “three broad categories of activity” that Congress may regulate under the Commerce Clause: (1) “the use of the channels of interstate commeree[;]” (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities[;]” and (3) “those activities having a substantial relation to interstate commerce.” 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Lopez Court concluded that the possession of a gun in a local school zone did not fall into any of those categories. In particular, the regulated activity did not have a substantial relation to interstate commerce because “[t]he possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.” Id. at 567, 115 S.Ct. 1624. The District Court in this case instructed the jury on the interstate commerce element as follows: The third element that the Government must prove beyond a reasonable doubt is that the Defendant’s conduct affected or could have affected interstate commerce. Conduct affects interstate commerce if it in any way interferes with[,] changes, alters the movement or transportation or flow of goods, merchandise, money or other property in" }, { "docid": "22300331", "title": "", "text": "Guzman and Hall make virtually identical arguments urging us to affirm the district court’s holding that the national sex offender registration requirements in § 16913 exceed Congress’s constitutional authority to legislate pursuant to the Commerce Clause. They further contend that § 2250(a) similarly violates the Commerce Clause. We find neither of these contentions convincing, and are equally unpersuaded by the other constitutional arguments rejected by the district court. Commerce Clause The Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const, art. I, § 8, cl. 3. The current framework for approaching questions of the scope of congressional authority to regulate interstate commerce derives from the Supreme Court’s opinion in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Lopez broke down the Commerce Clause inquiry into three categories of congressional regulatory authority: (1) “[to] regulate the use of the channels of interstate commerce”; (2) “to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “to regulate those activities having a substantial relation to interstate commerce.” Id. at 558-59, 115 S.Ct. 1624. In United States v. Morrison, the Supreme Court provided further guidance regarding the final category, articulating four factors to be weighed in determining whether an activity substantially affects interstate commerce: (1) whether the regulated activity is economic in nature; (2) whether the statute contains an “express jurisdic tional element” linking its scope in some way to interstate commerce; (3) whether Congress made express findings regarding the effects of the regulated activity on interstate commerce; and (4) attenuation of the link between the regulated activity and interstate commerce. 529 U.S. 598, 611-12, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (internal quotation marks omitted). Moreover, in Morrison, the Supreme Court again firmly rejected the proposition that “Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617, 120 S.Ct. 1740. We have no difficulty concluding that § 2250(a) is a proper congressional exercise" } ]

[ { "docid": "23694609", "title": "", "text": "in terms of breach of an enlistment contract, the action sounds in tort. This court, pursuant to 28 U.S.C. § 1491, has no original tort jurisdiction. Martilla v. United States, 118 Ct.Cl. 177 (1950); Eastport Steamship Corp. v. United States, 178 Ct.Cl.599, 372 F.2d 1002 (1967); Clark v. United States, 198 Ct.Cl.593, 461 F.2d 781, cert. denied, 409 U.S.1028 (1972); Bibbs v. United States, 206 Ct.Cl. 896, cert. denied, 423 U.S. 985 (1975). In McCreery v. United States, 161 Ct. Cl. 484, 487-88 (1963), this court stated: The claim here is based on misrepresentation by the defendant’s officers which the plaintiff relied on to his detriment. The claim thus sounds in tort. Restatement of Torts (1938) § 532; Prosser Torts (1941 ed.) § 87. See also United States v. Neustadt, 366 U.S.696, 706, fn. 16 (1961). Repeatedly it has been held that under the Tucker Act (28 U.S.C. § 1491), which defines the general trial jurisdiction of this court, this court lacks jurisdiction over a case sounding jn tort regardless of how vicious or malicious the tort may be. * * * [Footnote omitted] The plaintiff does not sue for a recovery based on a breach of the written enlistment contract that he signed, nor could he do so successfully, because he does not allege that the enlistment documents were breached. Furthermore, we have found and concluded in the foregoing sections of this opinion that the Army did not breach the enlistment agreement created by the documents the plaintiff signed. Therefore, the plaintiff is in the position of having to claim that his suit is based on a contract created by the alleged oral representations and promises of the recruiting officer. We have found and concluded that the recruiting officer did not make such representations, and even if he did, he was without authority to make them, and that they were contrary to the Army Regulations and were null and void. We have held further that such oral representations, if they were made, formed no part of the enlistment contract. Under these circumstances, it is clear that if the plaintiff" } ]

[ { "docid": "4433819", "title": "", "text": "holding that jurisdiction to award money damages against the United States “cannot be premised on the asserted violation of regulations that do not specifically authorize awards of money damages,” for example, the Court has noted an exception for suits seeking the return of property “improperly exacted or retained.” Army & Air Force Exch. Serv. v. Sheehan, supra note 49, 102 S.Ct. at 2125 & n. 11 (quoting United States v. Testan, supra note 50, 424 U.S. at 401, 96 S.Ct. at 954). It might be argued that the employees fall within this exception, on the theory that the Bureau “improperly exacted” their services through promises of preferential consideration. The “improperly exacted or retained” rule, however, is simply a recognition that the Tucker Act protects private property from illegal government levy, regardless of whether any other statute or regulation authorizes recovery. See Eastport S.S. Corp. v. United States, supra note 66, 372 F.2d at 1007-08. Where a claimant alleges that property rights have been created through the operation of statutes or regulations, on the other hand, damages may be recovered only if the relevant provisions so authorize. See supra notes 65-66 and accompanying text. Because the employees’ compensation rights can only be defined by reference to statute and regulation, they do not fall within the scope of the “improperly exacted or retained” exception. The employees attempted to bolster their claim at oral argument through citation to a series of habeas corpus cases permitting rescission of military enlistment commitments procured through official misrepresentations. See, e.g., Pence v. Brown, 627 F.2d 872 (8th Cir.1980); Helton v. United States, 532 F.Supp. 813 (S.D.Ga.1982); Withum v. O’Connor, 506 F.Supp. 1374 (D.P.R.1981). As those cases have themselves emphasized, however, they are “quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance.” Pence v. Brown, supra, 627 F.2d at 874. . Response in Opposition to Motion to File Affidavits at 2 (filed Nov. 8, 1982). . Id. at 1-2. See also Reply Brief for Appellants at 8 (“The district court did not premise liability upon" }, { "docid": "8175068", "title": "", "text": "a non-submarine radioman, as described in chapter 26 of the recruiting manual which McCracken read prior to enlisting. Nor can it be said that he derived no benefits from this program; although the schooling he received did not fulfill McCracken’s hopes, the court has found that his technical training in the Navy would be of some commercial utility to him after the conclusion of his military service. See Nixon v. Secretary of the Navy, supra, 422 F.2d at 938 (Navy not obligated to cancel extension agreement where enlistee received the schooling which the agreement contemplated). Contrast Novak v. Rumsfeld, 423 F.Supp. 971, 974-75 (N.D.Cal.1976) (petition for habeas corpus granted where enlistee was not given the opportunity to take any of the advanced technical courses which were part of the program for which he had enlisted). In this case, the Navy has not violated any obligation imposed upon it by statute or regulation. The court therefore turns to the petitioner’s contractual arguments. McCracken contends that Lopez’ representations as to the length and nature of the ATF training for which the petitioner subsequently extended his term of enlistment bind the Navy, even though Lopez was not authorized to make the representations to which McCracken testified. He also relies upon the doctrine of equitable estoppel, under which he seeks to bar the respondents from denying the existence of a binding contract arising out of Lopez’ representations, even if the law would not recognize those statements as the basis of a contract between McCracken and the Navy. The notion that the Navy is contractually bound by Lopez’ oral representations (as recounted in the testimony of the petitioner) is directly contrary to the principle, recently reiterated by the Court of Appeals for the Second Circuit, that the unauthorized statements of a government agent do not bind the United States. In Doe v. Civiletti, 635 F.2d 88 (2d Cir. 1980), our Court of Appeals held that the promises of a Special Attorney employed by the United States Department of Justice and an agent of the Drug Enforcement Administration to a witness subject to the federal Witness" }, { "docid": "8175069", "title": "", "text": "training for which the petitioner subsequently extended his term of enlistment bind the Navy, even though Lopez was not authorized to make the representations to which McCracken testified. He also relies upon the doctrine of equitable estoppel, under which he seeks to bar the respondents from denying the existence of a binding contract arising out of Lopez’ representations, even if the law would not recognize those statements as the basis of a contract between McCracken and the Navy. The notion that the Navy is contractually bound by Lopez’ oral representations (as recounted in the testimony of the petitioner) is directly contrary to the principle, recently reiterated by the Court of Appeals for the Second Circuit, that the unauthorized statements of a government agent do not bind the United States. In Doe v. Civiletti, 635 F.2d 88 (2d Cir. 1980), our Court of Appeals held that the promises of a Special Attorney employed by the United States Department of Justice and an agent of the Drug Enforcement Administration to a witness subject to the federal Witness Protection Program did not bind the government, for neither the attorney nor the agent were authorized to make such promises. The court rejected the witness’ contractual claim for damages: That [the attorney and agent] lacked the actual authority to bind the Government is fatal to Doe’s suit, for it is axiomatic that the United States is not bound by the unauthorized acts of its agents. “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Undoubtedly, this “actual authority doctrine” may produce harsh results, and did so in Merrill-m which farmers whose crops were destroyed in a drought were denied reimbursement because the government agent who sold crop insurance to them was without actual authority to do so... . In spite of its rigor, the actual authority doctrine" }, { "docid": "20184337", "title": "", "text": "administrative remedial process. 10 U.S.C. § 938. II. Discussion 1. Validity of the Contract District courts have jurisdiction to hear complaints regarding the validity of military enlistment contracts. Pence v. Brown, 627 F.2d 872 (8th Cir.1980) (promise that plaintiff would enter service as a major rather than a captain caused contract to be rescindable where military refused to comply); Peavy v. Warner, 493 F.2d 748 (5th Cir.1974) (rescission of military contract induced by fraudulent state ments); Brown v. Dunleavy, 722 F.Supp. 1343 (E.D.Va.1989) (enlistee fraudulently induced to join Air Force with false promise that he could serve on an air crew); Schneble v. United States, 614 F.Supp. 78 (S.D.Ohio 1985) (rescission of contract sought following government’s breach); Santos v. Franklin, 493 F.Supp. 847 (E.D. Pa.1980) (reliance on written Navy statement); Bemis v. Whalen, 341 F.Supp. 1289 (S.D.Cal.1972). The Army argues that we have no jurisdiction over the matter. The Army argues that this action is in the nature of a writ of habeas corpus, since the plaintiff is seeking to be “released” from the military. In the Army’s view, since the date of plaintiff’s commencement of active duty, plaintiff’s superiors in west Texas have constructive possession of plaintiff. An action for a writ of habeas corpus is jurisdictionally proper only in the district where the custodian is located, even if the prisoner is elsewhere. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973). We disagree with the Army’s contention on this point. While it is true that many of the cited cases dealing with the rescission of military contracts involve writs, that is only because the plaintiffs are often already under the physical custody and control of the armed services. See, i.e., Brown v. Dunleavy, supra. Here, plaintiff’s failure to report for duty has kept him, at least to date, from entering into custody of the armed services. Plaintiff, to date, is neither detained, restrained, or confined. Schlanger v. Seamans, 401 U.S. 487, 489, 91 S.Ct. 995, 997, 28 L.Ed.2d 251 (1971). We have jurisdiction over the military contract" }, { "docid": "20184336", "title": "", "text": "due to foot problems (plaintiff testified to having arthritis in the foot) and asthma. The author of the report, Dr. Pagan, testified that such a report, at least with respect to an already commissioned officer, would do no more than act as a red flag requiring further investigation. In this particular case, Dr. Pagan testified the finding of “unfit” was based on the plaintiffs own complaints, not on the exam. In any event, according to Dr. Pagan, even a medical condition which might keep a person from enlisting can, at the Army’s discretion, be waived in order to retain a person already in the forces. In September of 1990, the Physical Review Board of the Army, after reviewing plaintiffs medical records, made the final determination that he was physically qualified for retention in the Army Reserve, with a medical waiver. We find that as a factual matter, the Army had made its own determination that plaintiff was fit for the Army Reserve, which may include active service. Plaintiff never challenged that determination with the internal administrative remedial process. 10 U.S.C. § 938. II. Discussion 1. Validity of the Contract District courts have jurisdiction to hear complaints regarding the validity of military enlistment contracts. Pence v. Brown, 627 F.2d 872 (8th Cir.1980) (promise that plaintiff would enter service as a major rather than a captain caused contract to be rescindable where military refused to comply); Peavy v. Warner, 493 F.2d 748 (5th Cir.1974) (rescission of military contract induced by fraudulent state ments); Brown v. Dunleavy, 722 F.Supp. 1343 (E.D.Va.1989) (enlistee fraudulently induced to join Air Force with false promise that he could serve on an air crew); Schneble v. United States, 614 F.Supp. 78 (S.D.Ohio 1985) (rescission of contract sought following government’s breach); Santos v. Franklin, 493 F.Supp. 847 (E.D. Pa.1980) (reliance on written Navy statement); Bemis v. Whalen, 341 F.Supp. 1289 (S.D.Cal.1972). The Army argues that we have no jurisdiction over the matter. The Army argues that this action is in the nature of a writ of habeas corpus, since the plaintiff is seeking to be “released” from the military." }, { "docid": "4433820", "title": "", "text": "damages may be recovered only if the relevant provisions so authorize. See supra notes 65-66 and accompanying text. Because the employees’ compensation rights can only be defined by reference to statute and regulation, they do not fall within the scope of the “improperly exacted or retained” exception. The employees attempted to bolster their claim at oral argument through citation to a series of habeas corpus cases permitting rescission of military enlistment commitments procured through official misrepresentations. See, e.g., Pence v. Brown, 627 F.2d 872 (8th Cir.1980); Helton v. United States, 532 F.Supp. 813 (S.D.Ga.1982); Withum v. O’Connor, 506 F.Supp. 1374 (D.P.R.1981). As those cases have themselves emphasized, however, they are “quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance.” Pence v. Brown, supra, 627 F.2d at 874. . Response in Opposition to Motion to File Affidavits at 2 (filed Nov. 8, 1982). . Id. at 1-2. See also Reply Brief for Appellants at 8 (“The district court did not premise liability upon a contract.”). . Response in Opposition to Motion to File Affidavits, supra note 75, at 2. . Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see also Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). . See generally G. Gunther, Constitutional Law 646-61, 668-69 (10th ed. 1980). . Colm v. Vance, 567 F.2d 1125, 1131 (D.C.Cir.1977); see also Ashton v. Civiletti, 613 F.2d 923, 928-29 (D.C.Cir.1979). . Colm v. Vance, supra note 80, 567 F.2d at 1128 (citations omitted). . J. Sackman, Nichols’ The Law of Eminent Domain § 4.3, at 187 (rev. 3d ed. Cum.Supp.1982) (footnote omitted) (emphasis in original). But see L. Tribe, American Constitutional Law § 9-2, at 459 n. 11 (1978) (“The body of rules determining which expectations constitute compensable property interests and which do not ... plainly requires reconsideration in light of the broader definition of property interests now employed in the law of procedural due process. There seems no good reason why the" }, { "docid": "8175094", "title": "", "text": "States, 243 U.S. 389, 409, 37 S.Ct. 387, 391, 61 L.Ed. 791 (1917). . See Corniel-Rodriguez v. Immigration & Naturalization Service, 532 F.2d 301, 306-307 (2d Cir. 1976). . See Hansen v. Harris, 619 F.2d 942, 949 (2d Cir. 1980). . The rule of Corniel-Rodriguez has expressly been limited by our Court of Appeals to cases in which a government employee or officer violated a regulation, which had the force of law, requiring him to do something. Goldberg v. Weinberger, 546 F.2d 477, 481 n.5 (2d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977). See Hansen v. Harris, 619 F.2d 942, 952 (2d Cir. 1980) (Friendly, J., dissenting). The petitioner has not established that the representations which, he alleges, Lopez made, while undoubtedly contrary to the Navy recruiting manual and therefore unauthorized, were made in violation of any mandatory regulation having the force of law. . This statement is contradicted by McCracken’s testimony that Lopez made numerous promises to him concerning the ATF program. However, because the written contract executed on December 15, 1975, is not ambiguous as to the Navy’s obligations to provide training to McCracken, such parol evidence may not be relied upon to alter the express terms of the agreement extending the term of the petitioner’s enlistment. See Dubeau v. Commanding Officer, Naval Reserve Center, 440 F.Supp. 747, 749 (D.Mass.1977). . That regulation, which provides for mandatory cancellation of enlistment extension agreements in certain circumstances, has no application to this case. See text supra at notes OSes. . See text supra at notes 32-52. . Because McCracken has not established that the Navy breached any contract which he may enforce against it, the court need not reach the question whether rescission is an appropriate remedy in cases where military enlistment agreements are breached. See generally Peavy v. Warner, 493 F.2d 748, 750 (5th Cir. 1974); United States ex rel. Roman v. Schlesinger, 404 F.Supp. 77, 86-87 (E.D.N.Y.1975); Matzelle v. Pratt, 332 F.Supp. 1010, 1012 (E.D.Va.1971)." }, { "docid": "1608385", "title": "", "text": "a writ of habe as corpus. She applied for discharge in accordance with Navy regulations. To date, some eight months after petitioner applied for discharge, her application has still not been conclusively denied. Therefore, it is the holding of this Court that under any of the aforementioned tests, petitioner has exhausted her administrative remedies and this Court has jurisdiction of the case. LIABILITY OF THE NAVY FOR REPRESENTATIONS OF ITS AGENT Respondents argue, relying upon Jackson v. United States, 573 F.2d 1189 (Ct. Cl. 1978), that the rule that the government may not be required to perform contracts entered into by its agents acting beyond their actual authority applies to fraudulently induced enlistment contracts. This Court finds this Court of Claims decision unconvincing and believes that the statement relied upon by respondents is dicta and unrelated to the Court’s reasons for dismissing Jackson’s claims. Since the Jackson decision, however, two courts have considered and rejected the argument that the military services are not bound by the misrepresentations of recruiters when the remedy sought is rescission of the recruiting contract. In Pence v. Brown, 627 F.2d 872 (8th Cir. 1980), the Eighth Circuit Court of Appeals, in response to the government’s argument that the Air Force was not bound by its agents’ representations, stated: This case is quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance. The propositions that the government cannot be held responsible for the misstatements of its agents does not extend to representations which induce a contract when the remedy sought is rescission. Id. at 874. Similarly, in Santos v. Franklin, 493 F.Supp. 847 (E.D.Pa.1980), the Court held that the Navy must discharge from active duty a reservist who had failed to meet reserve requirements in reliance upon erroneous advice of Navy officials. On the facts before me it would be unconscionable to permit the Navy to disavow the act of its agent on the ground that the agent had erred. Id. at 855. Respondents’ reliance on Jackson is misplaced. Pence and Santos represent the" }, { "docid": "8175070", "title": "", "text": "Protection Program did not bind the government, for neither the attorney nor the agent were authorized to make such promises. The court rejected the witness’ contractual claim for damages: That [the attorney and agent] lacked the actual authority to bind the Government is fatal to Doe’s suit, for it is axiomatic that the United States is not bound by the unauthorized acts of its agents. “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 3, 92 L.Ed. 10 (1947). Undoubtedly, this “actual authority doctrine” may produce harsh results, and did so in Merrill-m which farmers whose crops were destroyed in a drought were denied reimbursement because the government agent who sold crop insurance to them was without actual authority to do so... . In spite of its rigor, the actual authority doctrine has been scrupulously followed. See, e. g., Dresser Industries, Inc. v. United States, 596 F.2d 1231 (5th Cir. 1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 731, 62 L.Ed.2d 730 (1980); Jackson v. United States, 573 F.2d 1189 (Ct.Cl. 1978). Doe v. Civiletti, supra, 635 F.2d at 96 (emphasis added). In the Jackson case, cited by the Court of Appeals for the Second Circuit in Doe, the Court of Claims applied the “actual authority” doctrine to the claims of an Army enlistee who, like McCracken, sought to bind the military by a recruiter’s unauthorized promise. In Jackson, the plaintiff contended that a recruiter had promised him that, if enlisted, he would not be required to participate in any “dangerous-combat-type” maneuvers or activities; any such representation was contrary to the terms of the plaintiff’s written enlistment agreement and applicable regulations. The court held that he was obligated to fulfill the terms of the written contract, and that no representations made to the enlistee by his recruiter bound the government, since the enlistee had not proved that" }, { "docid": "3619443", "title": "", "text": "e.g., Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981) (claims that enlistment contracts are invalid or have been breached are decided according to principles of traditional contract law); Cinciarelli v. Carter, 662 F.2d 73, 78-79 (D.C.Cir.1981) (civilian courts are to apply traditional contract principles not only to enlistment contracts, but also to military active duty agreements); Pence v. Brown, 627 F.2d 872, 874 (8th Cir.1980) (when Air Force recruiters made innocent misrepresentation, recruit was entitled to rescission under general contract principles). However, the military enlistment cases do not arise under a detailed -statutory scheme like the one governing NHSC scholarships. The terms of the contractual relationship between the military enlistee and the Government is not regulated by statute, while the terms of the relationship between the NHSC scholar and the Government have been set forth in detail by Congress. The statutory scheme at issue here is more analogous to grant-in-aid programs, under which the federal government provides money for specific purposes and places conditions on the recipient. For example, the Hill-Burton Act, formally known as Title VI of the Public Health Service Act, 42 U.S.C. § 291, was passed to address the adequacy and distribution of health service facilities with post-Depression and post-war programs. American Hosp. Assoc. v. Schweiker, 721 F.2d 170, 172 (7th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2169, 80 L.Ed.2d 553 (1984). Under the Act, the federal government gave money to the states to develop and to improve hospital physical facilities and research. In return, the facilities were required to provide no-cost health service to the poor. This requirement was challenged by health care providers because they claimed the requirements restricted freedom of contract. The Schweiker court disagreed, finding that: Rather than a voluntary agreement negotiated between two parties, a grant-in-aid program like that under the Hill-Burton Act is an exercise by the federal government of its authority under the spending power to bring about certain public policy goals_ Determination of statutory intent, therefore, is of more relevance to the interpretation of these conditions than is an inquiry into the intent of" }, { "docid": "8175071", "title": "", "text": "has been scrupulously followed. See, e. g., Dresser Industries, Inc. v. United States, 596 F.2d 1231 (5th Cir. 1979), cert. denied, 444 U.S. 1044, 100 S.Ct. 731, 62 L.Ed.2d 730 (1980); Jackson v. United States, 573 F.2d 1189 (Ct.Cl. 1978). Doe v. Civiletti, supra, 635 F.2d at 96 (emphasis added). In the Jackson case, cited by the Court of Appeals for the Second Circuit in Doe, the Court of Claims applied the “actual authority” doctrine to the claims of an Army enlistee who, like McCracken, sought to bind the military by a recruiter’s unauthorized promise. In Jackson, the plaintiff contended that a recruiter had promised him that, if enlisted, he would not be required to participate in any “dangerous-combat-type” maneuvers or activities; any such representation was contrary to the terms of the plaintiff’s written enlistment agreement and applicable regulations. The court held that he was obligated to fulfill the terms of the written contract, and that no representations made to the enlistee by his recruiter bound the government, since the enlistee had not proved that the recruiter was actually authorized to make them. See Jackson v. United States, supra, 573 F.2d at 1197. The instant case is similar in this regard to Jackson. Even if it is assumed that Lopez made the statements about the ATF program which McCracken has ascribed to him, those representations create no contractual obligation or liability on the part of the Navy, for the petitioner has not proved that Lopez was authorized to make them. In an apparent effort to circumvent the “actual authority” doctrine, the petitioner invokes the theory of estoppel to support his claim that the respondents are bound by Lopez’ alleged misrepresentations as to the length and nature of the training which the Navy was to provide McCracken. This argument must fail. In this Circuit, the rule that oral misrepresentations by government employees do not create contracts by operation of the equitable principle of estoppel is enforced except in the unusual circumstances of affirmative misconduct by a government official which results in the denial of benefits or a misstatement by a government" }, { "docid": "3619442", "title": "", "text": "“contract principles do not apply in this case ... [and so] Melendez’s contract claims do not identify a fact issue on which the jury was entitled to deliberate.” Id. at 219. The Melendez court held that there was no issue for the jury because the Government proved the contract, proved the funding of the student, and proved that the student did not perform the obligation as approved or contracted. Similarly, in this case the Government has proved the contract with Dr. Vanhorn, proved that it funded her education, and proved that Dr. Vanhorn did not perform the obligation as approved or contracted. Therefore, there was no issue on which the jury could deliberate. Dr. Vanhorn, however, argues that courts which hold that ordinary contract principles do not apply in these cases employ faulty reasoning. Without citing a single direct authority regarding NHSC obligations, Dr. Vanhorn argues that ordinary principles of federal contract law do apply to government contracts, pointing to a line of cases enforcing military enlistment contracts which she says supports her view. See, e.g., Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981) (claims that enlistment contracts are invalid or have been breached are decided according to principles of traditional contract law); Cinciarelli v. Carter, 662 F.2d 73, 78-79 (D.C.Cir.1981) (civilian courts are to apply traditional contract principles not only to enlistment contracts, but also to military active duty agreements); Pence v. Brown, 627 F.2d 872, 874 (8th Cir.1980) (when Air Force recruiters made innocent misrepresentation, recruit was entitled to rescission under general contract principles). However, the military enlistment cases do not arise under a detailed -statutory scheme like the one governing NHSC scholarships. The terms of the contractual relationship between the military enlistee and the Government is not regulated by statute, while the terms of the relationship between the NHSC scholar and the Government have been set forth in detail by Congress. The statutory scheme at issue here is more analogous to grant-in-aid programs, under which the federal government provides money for specific purposes and places conditions on the recipient. For example, the Hill-Burton Act," }, { "docid": "4390903", "title": "", "text": "the misrepresentation fraudulently induces the plaintiff to enter into a contract.” Id. at *7. Reviewing the rationale behind the economic loss doctrine, the Court of Appeals of Wisconsin agreed with the trial court that “it would be contrary to public policy to insulate parties from the consequences of fraudulent conduct by applying a doctrine that would preclude the defrauded party from seeking tort damages.” Id. at *8 (emphasis added, internal quotation marks and citations omitted). The Supreme Court of Wisconsin granted review and, on January 28, 2003, heard oral arguments on the issue in Digicorp. 2. Neither Home Valu, Douglas-Hanson, Digicorp, nor any of the other cases discussed in the previous section addressed whether a party may rescind a contract based on fraudulent inducement or a misrepresentation. No Wisconsin court appears to have addressed squarely whether the economic loss doctrine bars a claim for fraudulent inducement (whether the misrepresentation is negligent, strict responsibility or intentional) when the remedy sought is rescission. However, the Supreme Court of Wisconsin has repeatedly recognized a party’s right to seek rescission under contract law where its assent was induced by a material or fraudulent misrepresentation. The defrauded party can elect whether to seek rescission or affirm the contract and seek damages. We note that we have acknowledged that Wisconsin would allow such an action for rescission. See Marine Bank, N.A. v. Meat Counter, Inc., 826 F.2d 1577, 1588 (7th Cir.1987). The Supreme Court of Wisconsin has discussed rescission in the context of the relationship between contract and tort misrepresentation claims in Whipp v. Iverson, 43 Wis.2d 166, 168 N.W.2d 201 (1969), and First National Bank & Trust Co. of Racine v. Notte, 97 Wis.2d 207, 293 N.W.2d 530 (1980). In Whipp, the Supreme Court of Wisconsin refused to dismiss a complaint for failure to state a cause of action when the complaint alleged that the defendants had made a false representation, that the defendants knew or should have known that the statements were false, that the plaintiff relied on those statements, and, consequently, that the plaintiff was induced into entering into an agreement with the" }, { "docid": "5892147", "title": "", "text": "authorized to make the alleged promise, if in fact he did so; that such a promise would have been contrary to regulations and the enlistment agreement and formed no part of it; that there was no requirement that plaintiff receive the training immediately but that it could have been provided during his enlistment period; and that the claim sounded in tort over which this court has no jurisdiction. The court applied the principles of contract interpretation to the enlistment agreement. In Palcic v. United States, 218 Ct.Cl. 749 (1978), plaintiff claimed that he was fraudulently induced to enlist upon oral promises of recruiters that he would be assigned to the Army Criminal Investigation Command (CIC). Plaintiff claimed a breach of the enlistment contract when he was not so assigned but he, too, had executed the standard enlistment contract acknowledging that all promises made to him were contained therein. The enlistment contract did not mention the CIC program. The claim was dismissed upon authority of the decision in Jackson, supra. In a subsequent order in the Palcic case, issued January 5, 1979, the court further ruled that suits against the Government arising out of either willful or negligent misrepresentation are tort claims but that no court has jurisdiction of them because they are specifically exempted from coverage under the Federal Tort Claims Act. 28 U.S.C. § 2680(h) (1976). The foregoing cases are in harmony with the decisions of other federal courts and that sound body of modern case law that recognizes both a change of status and contractual rights are involved in the transition from civilian to soldier. Pence v. Brown, 627 F.2d 872, 874 (8th Cir. 1980); Lundgrin v. Claytor, 619 F.2d 61, 62 (10th Cir. 1980); McCracken v. United States, 502 F.Supp. 561, 573 (D. Conn. 1980); Santos v. Franklin, 493 F.Supp. 847, 851 (E.D. Pa. 1980); Novak v. Rumsfeld, 423 F.Supp. 971, 972 (N.D. Cal. 1976); Pfile v. Corcoran, 287 F.Supp. 554, 556-57 (D. Colo. 1968). The relationship between the soldier and state has changed over the past 90 years since In re Grimley, supra, ruled that under" }, { "docid": "16035575", "title": "", "text": "would have been released on approximately July 31, 2005. It is ironic that Qualls is trying to maintain an action seeking his release from the military when he himself precluded that very outcome. Finally, the Court finds that Qualls did not lack “free will” when he chose to re-enlist. Financial considerations are a part of anyone’s decision-making process when choosing among potential careers. Though financial issues may have been paramount in Qualls’ thought process, he was not forced to sign his name on the dotted line and raise his right hand when sworn in. To allow individuals to accept bonuses and then at a later date claim economic duress would both open the floodgates of litigation on such claims and fundamentally undermine the military recruitment process. The Court refuses to go down that path. D. Fraudulent Inducement and Material Misrepresentation Rescission of an enlistment contract is proper if the recruit was induced to enter into the contract by fraud or false representations. Brown v. Dunleavy, 722 F.Supp. 1343, 1350 (E.D.Va.1989); Withum v. O’Connor, 506 F.Supp. 1374, 1378 (D.P.R.1981) (citing Chalfant v. Laird, 420 F.2d 945, 945 (9th Cir.1969)). This is so even if the misrepresentations were innocently or non-negligently made. Withum, 506 F.Supp. at 1378. The recipient of the alleged misrepresentation must demonstrate that the maker made an assertion that was: (1) not in accordance with the facts, (2) that was material, and that (3) was relied upon (4) justifiably by the recipient in manifesting his assent to the agreement. Barrer v. Women’s Nat’l Bank, 761 F.2d 752, 758 (D.C.Cir.1985) Plaintiff Perez alleges that he was falsely assured by a recruiter that he could try out the National Guard for one year through the “Try One” program, and that after the one year he would have no further commitment unless he voluntarily chose to make one. (Amend.Compl.8.) Defendants contend that neither his recruiter’s actions, nor the Government’s actions in later applying “stop loss” to extend Perez’s enlistment, rise to the level of material misrepresentation. (Defs.’ Mot. 2.) The Court is compelled to agree with defendants. As evidence of the representations" }, { "docid": "5892148", "title": "", "text": "Palcic case, issued January 5, 1979, the court further ruled that suits against the Government arising out of either willful or negligent misrepresentation are tort claims but that no court has jurisdiction of them because they are specifically exempted from coverage under the Federal Tort Claims Act. 28 U.S.C. § 2680(h) (1976). The foregoing cases are in harmony with the decisions of other federal courts and that sound body of modern case law that recognizes both a change of status and contractual rights are involved in the transition from civilian to soldier. Pence v. Brown, 627 F.2d 872, 874 (8th Cir. 1980); Lundgrin v. Claytor, 619 F.2d 61, 62 (10th Cir. 1980); McCracken v. United States, 502 F.Supp. 561, 573 (D. Conn. 1980); Santos v. Franklin, 493 F.Supp. 847, 851 (E.D. Pa. 1980); Novak v. Rumsfeld, 423 F.Supp. 971, 972 (N.D. Cal. 1976); Pfile v. Corcoran, 287 F.Supp. 554, 556-57 (D. Colo. 1968). The relationship between the soldier and state has changed over the past 90 years since In re Grimley, supra, ruled that under conditions then existing, enlistment only effects a change of status, thereby making contract principles unnecessary. With the advent of the all-volunteer Army in 1973 came a new recruitment philosophy. Inducements such as delayed entry programs, optional special training, and special assignment duty have become the Army’s standard \"pitch” to attract recruits. These inducements, presented with vigor to meet enlistment goals, are often couched in terms of \"promise” and \"guarantee.” For instance, the enlistment agreement in the instant case contained the following provisions: If enlisting for an Army school course, I am assured of attending school course MOS 91B10 MEDICAL SPECIALIST. [Emphasis added.] [1.(g)(2).] * * * * * I am guaranteed assignment to the unit or activity for which enlisted for a minimum of 12 months. * * *. [Emphasis added.] [Sec. Ill, l.b.] * * * * * In the event my enlistment commitment cannot be fulfilled * * * I understand that I will have a period of thirty (30) days to elect an alternative or to request other training or assignment *" }, { "docid": "1608386", "title": "", "text": "of the recruiting contract. In Pence v. Brown, 627 F.2d 872 (8th Cir. 1980), the Eighth Circuit Court of Appeals, in response to the government’s argument that the Air Force was not bound by its agents’ representations, stated: This case is quite different from a suit against the government for misrepresentations in contracting in which the complaint seeks money damages or specific performance. The propositions that the government cannot be held responsible for the misstatements of its agents does not extend to representations which induce a contract when the remedy sought is rescission. Id. at 874. Similarly, in Santos v. Franklin, 493 F.Supp. 847 (E.D.Pa.1980), the Court held that the Navy must discharge from active duty a reservist who had failed to meet reserve requirements in reliance upon erroneous advice of Navy officials. On the facts before me it would be unconscionable to permit the Navy to disavow the act of its agent on the ground that the agent had erred. Id. at 855. Respondents’ reliance on Jackson is misplaced. Pence and Santos represent the current state of the law in these type of cases and are consistent with this Court’s interpretation of the law. Accordingly, this Court holds that the Navy is bound by the oral promises, misstatements, and representations of its recruiter. SUFFICIENCY OF MISREPRESENTATIONS Military enlistment contracts are subject to traditional principles of contract law. Heavy v. Warner, 493 F.2d 748 (5th Cir. 1974). A recruit is entitled to rescind an enlistment contract if the military is unable to perform its obligation. Novak v. Rumsfeld, 423 F.Supp. 971 (N.D.Cal.1976); if the terms of the contract are so ambiguous as to be misleading, Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); or if the recruit was induced to enter into the contract by fraud or false representations. Chalfant v. Laird, 420 F.2d 945 (9th Cir. 1969). Even if the misrepresentations were innocently or nonnegligently made, if they were material and induced the prospective recruit to enlist, the contract may be rescinded. Pence v. Brown, supra at 874. It is not necessary, however, that the false representations deprive" }, { "docid": "1608384", "title": "", "text": "in the case of Rina de Toledo Wagner v. United States, civil number 77-1835, June 9, 1980. This unpublished opinion of a hearing for a preliminary injunction and motion to dismiss, however, is inapposite on its facts to the instant case. The plaintiff in Wagner made no effort to apply for administrative relief from the Army itself under the Army’s regulations governing discharges. The first and only relief sought was for a breach of contract action commenced in federal court. This is in sharp contrast to the instant case in which petitioner applied for discharge from the Navy in accordance with Navy regulations. 32 C.F.R. section 730.1 et seq. Additionally, the published rule of law in the District of Puerto Rico was announced in Suro v. Padilla, 441 F.Supp. 14 (D.P.R. 1974), in which the District Court held with the majority of circuits that failure to appeal to the appropriate board does not preclude the Court from exercising jurisdiction. Petitioner has exhausted all reasonable administrative remedies available to her prior to filing a petition for a writ of habe as corpus. She applied for discharge in accordance with Navy regulations. To date, some eight months after petitioner applied for discharge, her application has still not been conclusively denied. Therefore, it is the holding of this Court that under any of the aforementioned tests, petitioner has exhausted her administrative remedies and this Court has jurisdiction of the case. LIABILITY OF THE NAVY FOR REPRESENTATIONS OF ITS AGENT Respondents argue, relying upon Jackson v. United States, 573 F.2d 1189 (Ct. Cl. 1978), that the rule that the government may not be required to perform contracts entered into by its agents acting beyond their actual authority applies to fraudulently induced enlistment contracts. This Court finds this Court of Claims decision unconvincing and believes that the statement relied upon by respondents is dicta and unrelated to the Court’s reasons for dismissing Jackson’s claims. Since the Jackson decision, however, two courts have considered and rejected the argument that the military services are not bound by the misrepresentations of recruiters when the remedy sought is rescission" }, { "docid": "1608388", "title": "", "text": "the recruit of every benefit of the contract. Pence v. Brown, supra. The focus of the conversation between petitioner and Recruiter Esposito was on the higher education benefits available to petitioner through enlistment in the Navy. The recruiter’s statements and representations as to the ready access of enlisted Navy personnel to “A” schools and college programs were tailored to appeal to petitioner’s special interest. Esposito represented that the Navy would supply the educational goals she had set for herself and these misrepresentations went to the heart of her stated reasons for investigating and enlisting in the Navy. These mis representations went beyond puffery, sales talk, or speculation as to the future effect of a contract. The Navy has an obligation to “be straightforward in its contractual dealings” and to “accurately inform prospective enlistees of both the available education-training opportunities and the stringent qualifying criteria for these attractive programs.” Novak v. Rumsfeld, supra at 972. Petitioner was assured that on the basis of the contract she signed she would be able to obtain “A” school training and attend any college she chose that would accept her while the Navy paid a substantial portion of her tuition. She is now assigned to menial tasks inconsistent with her goals and with no opportunity to acquire the promised training. Thus, the misrepresentations made to petitioner were material; they relate to the purpose of her contract, distort its meaning, and compel rescission. This Court, however, does not wish to interfere with the administration of any military personnel program or decision any more than is absolutely necessary to protect the legal rights of individuals involved. See, Frentheway v. Bodenhamer, 444 F.Supp. 275 (D.Wyo.1977). Therefore, this Court grants Seaman Apprentice Mary Withum’s petition for a writ of habeas corpus and it is hereby ordered that petitioner be released from the United States Navy, unless the Navy within 20 days of the issuance of this order agrees to perform the contract consistent with the findings of this Court. Cf., Pence v. Brown, 627 F.2d 872 (8th Cir. 1980). This opinion constitutes the Court’s findings of fact and conclusions" }, { "docid": "1608387", "title": "", "text": "current state of the law in these type of cases and are consistent with this Court’s interpretation of the law. Accordingly, this Court holds that the Navy is bound by the oral promises, misstatements, and representations of its recruiter. SUFFICIENCY OF MISREPRESENTATIONS Military enlistment contracts are subject to traditional principles of contract law. Heavy v. Warner, 493 F.2d 748 (5th Cir. 1974). A recruit is entitled to rescind an enlistment contract if the military is unable to perform its obligation. Novak v. Rumsfeld, 423 F.Supp. 971 (N.D.Cal.1976); if the terms of the contract are so ambiguous as to be misleading, Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972); or if the recruit was induced to enter into the contract by fraud or false representations. Chalfant v. Laird, 420 F.2d 945 (9th Cir. 1969). Even if the misrepresentations were innocently or nonnegligently made, if they were material and induced the prospective recruit to enlist, the contract may be rescinded. Pence v. Brown, supra at 874. It is not necessary, however, that the false representations deprive the recruit of every benefit of the contract. Pence v. Brown, supra. The focus of the conversation between petitioner and Recruiter Esposito was on the higher education benefits available to petitioner through enlistment in the Navy. The recruiter’s statements and representations as to the ready access of enlisted Navy personnel to “A” schools and college programs were tailored to appeal to petitioner’s special interest. Esposito represented that the Navy would supply the educational goals she had set for herself and these misrepresentations went to the heart of her stated reasons for investigating and enlisting in the Navy. These mis representations went beyond puffery, sales talk, or speculation as to the future effect of a contract. The Navy has an obligation to “be straightforward in its contractual dealings” and to “accurately inform prospective enlistees of both the available education-training opportunities and the stringent qualifying criteria for these attractive programs.” Novak v. Rumsfeld, supra at 972. Petitioner was assured that on the basis of the contract she signed she would be able to obtain “A” school training" } ]

[ { "docid": "22661756", "title": "", "text": "the litigation of thousands of cases, have made significant contributions to the development of this jurisprudence. Bench and bar are schooled in it. Citizens of these states and their legal advisers have relied upon it and structured their legal relationships with one another and conducted their affairs in accordance with it. By adopting the former Fifth Circuit precedent we maintain the stability and predictability previously enjoyed. The decisions of the former Fifth Circuit, adopted as precedent by the Eleventh Circuit, will, of course, be subject to the power of the Eleventh Circuit sitting en banc to overrule any such decision. The Eighth Circuit was split in 1929 into the Eighth and Tenth. Two subsequent decisions by district courts in the new Tenth accepted the law of the Eighth as binding. In Thompson v. St. Louis-San Francisco Ry. Co., 5 F.Supp. 785 at 789 (N.D.Okl.1934), the court observed: The Tenth Circuit Court of Appeals, which is controlling of this court, has not passed upon the question, and since there is a difference in the holdings of two Circuit Courts of Appeals, the question is properly for the United States Supreme Court, rather than for this court’s determination. However, it is not difficult to decide that the ruling of the Eighth Circuit Court of Appeals is controlling of the decision of the question now before the court. This court was formerly a part of the Eighth Judicial Circuit, having become disengaged therefrom upon the creation of the Tenth Judicial Circuit. The decisions of the Eighth Judicial Circuit are binding upon this court in the absence of decisions of the Tenth Circuit. . . . [T]he Eighth Circuit Court of Appeals’ decision was rendered by two of the present judges of the Tenth Circuit Court of Appeals, and in my opinion the decision is controlling of this court. The same conclusion was reached in In re Meyers, 1 F.Supp. 673, 674 (W.D.Okl.), rev’d on other grounds sub nom. Barbee v. Spurrier Lumber Co., 64 F.2d 5 (10th Cir. 1933). We find no convincing reason for taking any course other than for this court" } ]

[ { "docid": "13721855", "title": "", "text": "which provides for the stripping of federal tax liens. . Subsections (d)(2) and (d)(3) are not relevant to the instant case. The legislative history to subsection 1141(a) does little more than restate the language used in the Code. . The Supreme Court has both affirmed and limited the holding of Stoll v. Gottlieb in a recent opinion. In Hollywell Corp. v. Smith, - U.S. -, 112 S.Ct. 1021, 117 L.Ed.2d 196 (1992) the Court stated that while a confirmed plan binds all creditors with preconfirmation claims, a plan could not bind creditors with postconfirmation claims. Therefore, the trustee of the estate was forced to make tax returns as the assignee of the property of the estate in trust despite the fact that the plan was silent about the payment of estate income tax. The binding effect of a plan has accordingly been limited to preconfirmation claims. . All decisions of the former Fifth Circuit handed down prior to October 1, 1981, are binding upon courts in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). . There is some disagreement on the issue of whether res judicata applies to challenges brought before the court which confirmed the plan. The Fifth Circuit, binding on this Court, seems to say that res judicata applies to claims already adjudicated wherever they may be brought. Constructors at 599-600. However, some courts hold that res judicata only applies to challenges other than appeals brought before courts other than the court originally rendering the decision. See Bill Roderick Distributing, Inc. v. A.J. Mackay Co. (In re A.J. Mackay Co.), 50 B.R. 756 (D.Utah 1985); Broadcast Capital, Inc. v. Davis Broadcasting, Inc. (In re Davis Broadcasting, Inc.), 169 B.R. 229 (Bankr.M.D. Ga.1994), rev'd on other grounds, In re Davis Broadcasting, Inc., No. 94-42-COL, slip op. at 2 (M.D.Ga. Aug. 1, 1994). The rationale for this holding is that challenges brought before the court confirming the plan are direct attacks, whereas challenges brought before another court are collateral attacks. This rationale does not take into account the language used in Constructors" }, { "docid": "16592062", "title": "", "text": "the parties; (8) ‘thin’ or inadequate capitalization; (9) identity of interest between creditor and stockholder; (10) source of interest payments; (11) the ability of the corporation to obtain loans from outside lending institutions; (12) the extent to which the advance was used to acquire capital assets; and (13) the failure of the debtor to repay on the due date or to seek postponement. Celotex Corporation v. Hillsborough Holdings Corporation (In re Hillsborough Holdings Corporation), 176 B.R. 223, 248 (M.D.Fla.1994); See also In re Lane, 742 F.2d 1311 (11th Cir.1984); Estate of Mixon v. United States, 464 F.2d 394 (5th Cir.1972). The Sixth Circuit has listed a slightly different, but in many respects very similar cata-logue of factors to consider when evaluating whether the transaction was made at arm’s length. Just as the Celotex Court did, the Sixth Circuit highlighted factors including identity of interest between creditor and stockholder, adequacy or inadequacy of capitalization, the source of repayments, the name given instruments evidencing indebtedness, presence or absence of fixed maturity date and schedule of payments, presence or absence of a fixed rate of interest and interest payments, inability to obtain outside financing, subordination of advances, presence or absence of a sinking fund, and the extent to which the advances were used to acquire capital assets. Additionally, the Sixth Circuit found the presence or absence of security for the purported loan to be an important factor which should be considered. Roth Steel Tube Company v. Commissioner of Internal Revenue, 800 F.2d 625, 680-32 (6th Cir.1986). A reading of the two lists of factors together highlights a few main themes that demarcate the distinction between loans and equity contributions in these situations. A critical group of factors concern the formality of the alleged loan agreement. The more specific and complete the parties are in identifying and codifying the terms of the alleged loan agreement, the more like a loan the transaction appears. By contrast, if the terms of such an agreement are vague and non-specific, such a transaction appears more like a shareholder contributing capital to keep his investment afloat. A second important" }, { "docid": "23074373", "title": "", "text": "v. United States, 424 F.2d 1330, 1334 (9th Cir.1970)). The Fifth and Eleventh Circuit Courts of Appeals, on the other hand, have held the issue to be primarily one of law subject to de novo review. Lane v. United States (In re Lane), 742 F.2d 1311, 1315 (11th Cir. 1984); Estate of Mixon v. United States, 464 F.2d 394, 402-03 & n. 13 (5th Cir. 1972). In our Court, we were called upon to review a debt versus equity determination in the tax context in Geftman v. Comm’r, 154 F.3d 61 (3d Cir.1998), but we eschewed entering the thicket of deciding whether we were reviewing a finding of fact or a conclusion of law. See id. at 68 n. 9. As discussed above, the determinative inquiry in classifying advances as debt or equity is the intent of the parties as it existed at the time of the transaction. So framed, we agree with our Sixth and Ninth Circuit colleagues that this is a question of fact that, “once resolved by a district court, cannot be overturned unless clearly erroneous.” A.R. Lantz Co., 424 F.2d at 1334. ii) The District Court’s Determination Was Not Clearly Erroneous The District Court’s opinion includes ample findings of fact to support its recharacterization determination. Because these findings are not clearly erroneous and overwhelmingly support the Court’s decision to characterize the 1999 Fundings as debt (under any framework or test), we affirm its factual determination. The District Court set out numerous facts to support a debt characterization. Looking to the lending documents, it found “beyond dispute in the record that ... the name given to the 1999 fundings was debt ... and ... the 1999 fundings had a fixed maturity date and interest rate.” In re SubMicron Sys., 291 B.R. at 325. The Court also found evidence of the parties’ intent to create a debt investment outside the lending documents. For example, it noted that “[t]he 1999 notes were recorded as secured debt on SubMicron’s 10Q SEC filing and UCC-1 financing statements.” Id. at 319. The District Court could not find, on the other hand, convincing" }, { "docid": "6280349", "title": "", "text": "time of the agreement and cannot exceed the price of that item. Then in 1985, the Eleventh Circuit reaffirmed application of the transformation rule in SouthTrust Bank v. Borg-Warner Acceptance Corp., 760 F.2d 1240 (1985), holding that the “inclusion of an after-acquired property clause and a future advances clause in BWAC (Borg-Warner’s) security agreement converted its purchase money security interest (PMSI) into an ordinary security interest.” This ruling came in the context of commercial credit, not consumer transactions. The Eleventh Circuit further held: Second, BWAC contends that the cases supporting the transformation rule involve situations in which the clauses were actually exercised, e.g. Manuel (agreement covering pre-existing debt); [In re] Simpson [4 U.C.C.Rep. 243, 1966 WL 8812 (Bankr.W.D.Mich.1966) ] (future advances actually made). BWAC argues that mere inclusion of the clauses does not void a PMSI. In re Griffin, 9 B.R. 880 (Bankr.N.D.Ga.1981) (when creditor is seller, mere existence of unexercised future advances clause does not destroy PMSI); [In re] Mid Atlantic Flange [26 U.C.C.Rep. 203, 1979 WL 30070 (E.D.Pa.1979) ] (same). We need not reach the issue of whether mere inclusion of unexercised future advances and after acquired property clauses voids a PMSI because we find that BWAC exercised the clauses here. After entering the security agreements with the debtors, BWAC regularly purchased inventory for the debtors and now claims that the debtors’ BWAC-financed inventory secures these purchases. This is an exercise of the future advances clause. Similarly, BWAC claims as collateral not only the inventory purchased at the time the security agreements were entered, but all BWAC-financed inventory. This is an exercise of the after-acquired property clause. We hold, therefore, that BWAC’s exercise of the future advances and after-acquired property clauses in its security agreements with the debtors destroyed its PMSI. (emphasis added) SouthTrust Bank, 760 F.2d at 1243. Again, on March 23, 1992 the Eleventh Circuit reaffirmed its adoption of the transformation rule in the case of In re Freeman, 956 F.2d 252 (11th Cir.1992) which held that a creditor’s security interest in a debtor’s tools was transformed from a PMSI to a non-purchase money security interest" }, { "docid": "23074396", "title": "", "text": "on October 1, 1981, the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit handed down as of September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). Thus, Mix-on was binding precedent for the Lane Court. . Since then, a revised Article 9 has been adopted in each state. . No claim is made that a security interest in the collateral was not created (the security agreements for the 1997 Notes and the 1998 Notes state that the collateral secures \"the payment of all present and future indebtedness”), only that it was not properly perfected. . This provision reads in pertinent part: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a). . Precisely this logical argument was presented in In re Realty Invs., Ltd V: An argument might be made that the \"allowed claim” referred to in the Congressional Record is only the secured portion of [the creditor's claim. But this is an argument of form and not of substance. Until [the nonrecourse undersecured lender] is paid in full, any bid received is subject to overbid by [the lender]. If [the bidder's bid were valued [below the full value of the lender's claim], [the lender] could overbid it, and [the lender] 's bid would then become, by definition, the \"allowed” claim.... [I]t is practical that [the lender] will bid in its entire obligation and therefore that is its \"allowed” claim. Because no one could buy the property without [the lender]'s consent, unless [the lender] is paid in full, the “allowed claim” of [the lender] must (for purposes of credit bidding) be its total claim without reference to the \"value” of the properly. 72 B.R. at 146. . We pause nonetheless to" }, { "docid": "14541377", "title": "", "text": "$32,197.36. The parties agree that the value of Property was $62,100.00. II. LAW Debtor’s motion raises the question of whether section 506 of the Bankruptcy Code permits a chapter 7 debtor to “strip off,” or completely void, a junior security deed where the value of the collateral does not extend to the subordinate lien. In a chapter 7 case, the analysis of this issue is limited to the operation of 11 U.S.C. § 506(a) and (d). Section 506(a) determines the secured status of a claim and allows for an un-dersecured claim to be bifurcated. The relevant statutory language for this action is: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a)(1). Debtor’s “strip off’ theory relies upon the interplay of § 506(a)(1)’s bifurcation tool with § 506(d). Section 506(d) provides: “To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void...” 11 U.S.C. § 506(d). Debtor’s ability to use § 506(d) to void Citibank’s lien is an issue of statutory interpretation. This is not a novel question of statutory interpretation; however, the parties disagree as to what caselaw is binding precedent on this court. The legal issue presented here is complicated by the recent unpublished decision entered by the Eleventh Circuit. In re McNeal, 477 Fed.Appx. 562 (11th Cir.2012) (per curium). The unpublished nature of McNeal is used by each party in support of its argument for opposite outcomes. Eleventh Circuit Rule 36-2 provides that an unpublished decision does not serve as binding precedent for lower courts. Of course, the McNeal opinion operates as persuasive authority. Debtor urges the court to adopt McNeal’s rationale, which determined that the controlling law in this circuit permits a chapter" }, { "docid": "14642966", "title": "", "text": "property interests to include, but not be limited to: money, checks, drafts, bullion, bank deposits, savings accounts, debts, indebtedness, obligations, notes, guarantees, debentures, stocks, bonds, coupons, any other financial instruments, bankers acceptances, mortgages, pledges, liens or other rights in the nature of security, warehouse receipts, bills of lading, trust receipts, bills of sale, any other evidences of title, ownership or indebtedness, letters of credit and any documents relating to any rights or obligations thereunder, powers of attorney, goods, wares, merchandise, chattels, stocks on hand, ships, goods on ships, real estate mortgages, deeds of trust, vendors sales agreements, land contracts, leaseholds, ground rents, real estate and any other interest therein, options, negotiable instruments, trade acceptances, royalties, book accounts, accounts payable, judgments, patents, trademarks or copyrights, insurance policies', safe deposit boxes and their contents, annuities, pooling agreements, services of any nature whatsoever, contracts of any nature whatsoever, and any other property, real, personal, or mixed, tangible or intangible, or interest or interests therein, present, future or contingent. 31 C.F.R. § 595.310. The regulations define \"interest,” as in \"interest in property,” to mean \"an interest of any nature whatsoever, direct or indirect.” 31 C.F.R. § 595.307. .Services is also broadly interpreted and includes legal, accounting, public relations, educational, or other services to a SDT. See 31 C.F.R. § 595.406. However; Sections 595.506 and 595.507 allow for legal and emergency medical services, including legal services to a SDT regarding its designation. See id. §§ 595.506, 595.507. . In Bonner v. City of Prichard, the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to September 30, 1981. 661 F.2d 1206, 1209 (11th Cir.1981) (en banc). . See also United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (stating “[a] defense is capable of pretrial determination if trial of facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense”); United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987) (concluding a motion to dismiss does not allow a defendant to" }, { "docid": "16561487", "title": "", "text": "may result in unnecessary expense to cancel and then reinstate the annexation referenda and preclearance applications. Moreover, if there is a reversal of the court’s orders approving and implementing the consent decree, Foley will be biggest financial loser, for it will have gone through the processes for naught. But that is a risk that Foley is apparently willing to take. Therefore, and for the reasons discussed above, it is ORDERED that the joint motion for stay of the consent decree pending appeal, filed by Gulf Shores, W.D. Bolton, John Krupinski and Margaret Krupinski on December 7, 1995, is denied. . Rule 24(a)(2) provides: \"Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.” . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. . Rule 24(b) provides in part: \"Upon timely application anyone may be permitted to intervene in an action: ... (2) when an applicant's claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.\" . In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit adopted as binding precedent all of the post-September 30, 1981 decisions of Unit B of the former Fifth Circuit. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit" }, { "docid": "11204175", "title": "", "text": "721, 725 (N.D.N.Y.1993) (vehicle part of estate where creditor had failed to perfect its security interest). In addition, in cases where the issue litigated is whether a creditor has violated the automatic stay by refusing to turn over a vehicle repossessed prepetition, courts have observed that the vehicle is property of the estate. See General Motors Acceptance Corp. v. Ryan, 183 B.R. 288 (M.D.Fla.1995); Carr v. Security Sav. & Loan Ass’n, 130 B.R. 434 (D.N.J.1991); Massey v. Chrysler Financial Corp. (In re Massey), 210 B.R. 693 (Bankr.D.Md.1997); Brown v. Joe Addison, Inc. (In re Brown), 210 B.R. 878 (Bankr.S.D.Ga.1997); Brooks v. World Omni (In re Brooks), 207 B.R. 738 (Bankr.N.D.Fla.1997); Deiss v. Southwest Recovery, U.S. (In re Deiss), 166 B.R. 92 (Bankr.S.D.Tex.1994); In re Richardson, 135 B.R. 256 (Bankr.E.D.Tex.1992). Under the Uniform Commercial Code (“UCC”) as adopted in most states, after repossession, the debtor’s interest in the vehicle is a right to redeem the vehicle. Where a bankruptcy court orders that a secured creditor turn over a repossessed vehicle, a Chapter 13 debtor may modify the rights of a secured creditor through the terms of its Chapter 13 plan. See, e.g., In re Sharon, 200 B.R. at 198-99 (discussing §§ 1322 and 1325). Notably, though, the Eleventh Circuit has recently reached a contrary result in a decision under Alabama law. Charles R. Hall Motors, Inc. v. Lewis (In re Lewis), 137 F.3d 1280, 1283 (11th Cir.1998). As discussed below, Lewis reaches its result by finding that a right of redemption is not a sufficient property interest to warrant turnover of a repossessed vehicle. In Lewis, the secured creditor argued that upon default, title and the right to possess a debtor’s automobile pass to the creditor. The Eleventh Circuit upheld the district court’s decision in favor of the creditor, finding that at the commencement of his Chapter 13 case, the debtor “did not retain title, possession or any other functionally equivalent ownership interest in the repossessed automobile.” Id. at 1284. Lewis found that in order to “change the [debtor’s] otherwise dormant right to redeem repossessed collateral into a meaningful ownership interest,”" }, { "docid": "23074372", "title": "", "text": "are repaid based on the borrower’s fortunes; hence, they are equity). Form is no doubt a factor, but in the end it is no more than an indicator of what the parties actually intended and acted on. C. Review of the District Court’s Re-characterization Holding i) Standard of Review We must first determine whether the District Court’s recharacterization conclusion is a finding of fact we review for clear error or a conclusion of law over which we exercise plenary review. Direct precedent on this issue is lacking, but several courts have considered this issue in the tax context. In tax cases addressing whether for tax purposes a contribution should be treated as debt or equity, courts of appeal are split. The United States Courts of Appeals for the Sixth and Ninth Circuits have concluded the issue is one of fact to be reviewed for clear error. Roth Steel Tube, 800 F.2d at 629 (citing Smith v. Comm’r, 370 F.2d 178,180 (6th Cir.1966)); Bauer v. Comm’r, 748 F.2d 1365, 1367 (9th Cir.1984) (citing A.R. Lantz Co. v. United States, 424 F.2d 1330, 1334 (9th Cir.1970)). The Fifth and Eleventh Circuit Courts of Appeals, on the other hand, have held the issue to be primarily one of law subject to de novo review. Lane v. United States (In re Lane), 742 F.2d 1311, 1315 (11th Cir. 1984); Estate of Mixon v. United States, 464 F.2d 394, 402-03 & n. 13 (5th Cir. 1972). In our Court, we were called upon to review a debt versus equity determination in the tax context in Geftman v. Comm’r, 154 F.3d 61 (3d Cir.1998), but we eschewed entering the thicket of deciding whether we were reviewing a finding of fact or a conclusion of law. See id. at 68 n. 9. As discussed above, the determinative inquiry in classifying advances as debt or equity is the intent of the parties as it existed at the time of the transaction. So framed, we agree with our Sixth and Ninth Circuit colleagues that this is a question of fact that, “once resolved by a district court, cannot be" }, { "docid": "22686644", "title": "", "text": "the Courts of Appeals, see 519 U. S. 1086 (1997), and we now reverse the Fifth Circuit’s judgment. II The Code provision central to the resolution of this case is § 506(a), which states: \"An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, . . . and is an unsecured claim to the extent that the value -of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property . . . .” 11 U.S. C. § 506(a). Over ACC’s objection, the Rashes’ repayment plan proposed, pursuant to § 1325(a)(5)(B), continued use of the property in question, i. e., the truck, in the debtor’s trade or business. In such a “cram down” case, we hold, the value of the property (and thus the amount of the secured claim under § 506(a)) is the price a willing buyer in the debtor’s trade, business, or situation would pay to obtain like property from a willing seller. Rejecting this replacement-value standard, and selecting instead the typically lower foreclosure-value standard, the Fifth Circuit trained its attention on the first sentence of § 506(a). In particular, the Fifth Circuit relied on these first sentence words: A claim is secured “to the extent of the value of such creditor’s interest in the estate’s interest in such property.” See 90 F. 3d, at 1044 (emphasis added) (citing § 506(a)). The Fifth Circuit read this phrase to instruct that the “starting point for the valuation [is] what the creditor could realize if it sold the estate’s interest in the property according to the security agreement,” namely, through “repossess[ing] and sell[ing] the collateral.” Ibid. We do not find in the § 506(a) first sentence words — “the creditor’s interest in the estate’s interest in such property”— the foreclosure-value meaning advanced by the" }, { "docid": "15940645", "title": "", "text": "and holding trust funded by beneficiary’s personal injury settlement was not excludable from his bankruptcy estate as a valid spendthrift trust); Dzikowski v. Edmonds (In re Cameron), 223 B.R. 20, 24 (Bankr.S.D.Fla.1998) (\"It is axiomatic that under New York Law, self-settled trusts are void against both present and future creditors and a debtor may not avoid his creditors, or future creditors, by placing his property in trust for his own benefit.”); In re Spenlinhauer, 182 B.R. 361, 364-65 (Bankr.D.Me.1995) (applying Maine law and holding settlor-beneficiaiy's interest in trust was not protected from creditors), aff’d, 101 F.3d 106 (1st Cir.1996); Jensen v. Hall (In re Hall), 22 B.R. 942, 944 (Bankr.M.D.Fla.1982) (applying Ohio law and holding creditors could reach settlor-beneficiary's interest in spendthrift trust); Speed v. Speed, 263 Ga. 166, 430 S.E.2d 348, 349 (Ga.1993) (applying Georgia law, and holding spendthrift provision in trust created by quadriplegic husband from his insurance benefits was not enforceable where the husband was both settlor and beneficiary); Bank of Dallas v. Republic Nat'l Bank of Dallas, 540 S.W.2d 499, 501-02 (Tex. App.1976) (applying Texas law, and holding settlor who created spendthrift trust and made herself a beneficiary thereof could not protect her interest in the trust from her creditors). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. . Sources setting forth the common law of trusts frequently are cited by Florida courts for guidance regarding construction of spendthrift and other trusts. See, e.g., Bacardi v. White, 463 So.2d 218, 222 (Fla.1985) (citing Restatement (Second) of Trusts regarding spendthrift trusts); Waterbury, 32 So.2d at 605 (citing Bogert's Trusts & Trustees and Griswold's Spendthrift Trusts regarding spendthrift trusts); Gilbert v. Gilbert, 447 So.2d 299, 301 (Fla.App.1984) (citing Scott's The Law of Trusts regarding spendthrift trusts). . The fact that Appellee cannot exercise dominion over the trust assets is irrelevant to this analysis. The issue of self-settlement is separate from the issue of control, and either can" }, { "docid": "8467087", "title": "", "text": "home retained] $23,500 of value as collateral.” Id. at 329, 113 S.Ct. 2106 (emphasis added). We conclude from this language, as well as the language of the statute, that the antimodification exception of Section 1322(b)(2) protects a creditor’s rights in a mortgage lien only where the debtor’s residence retains enough value— after accounting for other encumbrances that have priority over the lien — so that the lien is at least partially secured under Section 506(a). We therefore join the Third, Fifth, and Eleventh Circuits, as well as the Bankruptcy Appellate Panels of the First and Ninth Circuits, in holding that a wholly unsecured claim, as defined under Section 506(a), is not protected under the antimodification exception of Section 1322(b)(2). See McDonald, 205 F.3d at 611; Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Domestic Bank, 249 B.R. at 838; Lam v. Investors Thrift (In re Lam), 211 B.R. 36 (9th Cir. B.A.P. 1997), appeal dismissed on other grounds, 192 F.3d 1309 (9th Cir.1999). But cf. American Gen. Finance, Inc. v. Dickerson (In re Dickerson), 222 F.3d 924, 926 (11th Cir.2000) (explaining that, if the panel were to decide the issue on a clean slate, it would adopt the minority view, but that it was bound by the majority view because the Circuit had already adopted this view). Defendants argue that, even if we were to adopt the majority view on this issue, as we now have, their lien should be protected under the antimodification exception because it is “secured” within the meaning of Section 506(a), which defines a claim as secured “to the extent of the value of such creditor’s interest in the estate’s interest in such property.” 11 U.S.C. § 506(a) (emphasis added). According to defendants, their lien is “secured” under Section 506(a) — and, therefore, protected under the antimodification exception of Section 1322(b)(2) — because New York law provides lienholders with in rem rights that have “value” over and above the equity in the property underlying a lien. See," }, { "docid": "14541383", "title": "", "text": "was “secured” because it was “secured by a lien with recourse to the underlying collateral.” Id. Therefore the claim was not subject to § 506(d), which voids a lien “[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim,” because the claim was both “allowed” and “secured.” Id. The court read the lien-voiding powers of § 506(d) as having “the simple and sensible function of voiding a lien whenever a claim secured by the lien itself has not been allowed.” Id. at 415-16, 112 S.Ct. 773. Because the claim was allowed and “secured by a lien with recourse to the underlying collateral,” § 506(d) did not void it. Id. at 415-17, 112 S.Ct. 773. “[T]he creditor’s lien stays with the real property until the foreclosure” because that is what was “bargained for,” with any increase in the property’s value accruing “to the benefit of the [secured] creditor.” Id. B. In re McNeal, 477 Fed.Appx. 563 (11th Cir.2012). Recently, the Eleventh Circuit ruled in McNeal, that a chapter 7 debtor could void a “wholly unsecured” lien on real property. In re McNeal, 477 Fed.Appx. 562 (11th Cir.2012) (unpublished per curium decision). The McNeal court relied on Folendore v. U.S. Small Business Administration, 862 F.2d 1537, 1538 (11th Cir.1989), not Dewsnup, as “the present controlling precedent in the Eleventh Circuit” for voiding a wholly unsecured allowed claim under § 506(d). Id. at 564. The court reached this holding by applying the prior panel precedent rule which states “a later panel [of the same court] may depart from an earlier panel’s decision only when the intervening Supreme Court decision is ‘clearly on point.’ ” Id. (citing Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284 (11th Cir.2007)). The court concluded Dewsnup was not “clearly on point” with the facts of McNeal because “Dewsn-up disallowed only a ‘strip down’ ... and did not address a ‘strip off.’ ” Id. McNeal also recognized that other circuit courts had determined that Dewsnup was applicable to “strip off’ cases and that cases within the Eleventh Circuit “have" }, { "docid": "4309020", "title": "", "text": "56 L.Ed.2d 395 (1978). The rule states, in pertinent part, (c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. The decision whether to allow substitution is discretionary. Collateral Control Corp. v. Deal (In re Covington Grain Co.), 638 F.2d 1357, 1360 (5th Cir. Unit B 1981); Prop-Jets, Inc. v. Chandler, 575 F.2d 1322, 1324 (10th Cir.1978); Fontana v. United Bonding Insurance Co., 468 F.2d 168, 170 (3d Cir.1972). In this case, the district court refused substitution because Patterson’s participation had been and would continue to be highly disruptive of the orderly administration of the litigation. We find no abuse of discretion. V. For the reasons we have stated, the district court’s summary judgment in favor of the defendants and against SAFFCO is VACATED, and the case is REMANDED for further proceedings on SAFFCO’s antitrust claims against the defendants. In all other respects, the district court is AFFIRMED. . In determining whether the existence of material fact issues precluded the entry of summary judgment in the district court, we treat the evidence presented to the district court in the light most favorable to the nonmovant plaintiffs. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Thrasher v. State Farm Fire & Casualty Co., 734 F.2d 637, 638 (11th Cir.1984). . In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981." }, { "docid": "23074395", "title": "", "text": "date; (4) the right to enforce payment of principal and interest; (5) the presence or absence of voting rights; (6) the status of the contribution in relation to regular corporate contributors; and (7) certainty of payment in the event of the corporation’s insolvency or liquidation. In re SubMicron Sys., 291 B.R. at 323 (citing In re Color Tile, 2000 WL 152129, at *4). . Research has uncovered only one bankruptcy case discussing whether the capital contribution versus loan determination question is primarily one of law or fact. There the Court concluded that ’’[t]he issue of classification of an advance presents a question of law subject to de novo review.” Celotex Corp. v. Hillsborough Holdings Corp. (In re Hillsborough Holdings Corp.), 176 B.R. 223, 248 (M.D,Fla.l994) (citing Lane v. United States (In re Lane), 742 F.2d 1311 (11th Cir.1984), a tax refund case). . Of course, it could be argued that the Eleventh Circuit did not reach this conclusion of its own accord. When the former Fifth Circuit was split into the Fifth and Eleventh Circuits on October 1, 1981, the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit handed down as of September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981). Thus, Mix-on was binding precedent for the Lane Court. . Since then, a revised Article 9 has been adopted in each state. . No claim is made that a security interest in the collateral was not created (the security agreements for the 1997 Notes and the 1998 Notes state that the collateral secures \"the payment of all present and future indebtedness”), only that it was not properly perfected. . This provision reads in pertinent part: An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor's interest ... is less than the amount of such allowed" }, { "docid": "6280350", "title": "", "text": "reach the issue of whether mere inclusion of unexercised future advances and after acquired property clauses voids a PMSI because we find that BWAC exercised the clauses here. After entering the security agreements with the debtors, BWAC regularly purchased inventory for the debtors and now claims that the debtors’ BWAC-financed inventory secures these purchases. This is an exercise of the future advances clause. Similarly, BWAC claims as collateral not only the inventory purchased at the time the security agreements were entered, but all BWAC-financed inventory. This is an exercise of the after-acquired property clause. We hold, therefore, that BWAC’s exercise of the future advances and after-acquired property clauses in its security agreements with the debtors destroyed its PMSI. (emphasis added) SouthTrust Bank, 760 F.2d at 1243. Again, on March 23, 1992 the Eleventh Circuit reaffirmed its adoption of the transformation rule in the case of In re Freeman, 956 F.2d 252 (11th Cir.1992) which held that a creditor’s security interest in a debtor’s tools was transformed from a PMSI to a non-purchase money security interest and, thus, could be avoided under Section 522(f)(2)(A). Now, some 20 months later, ORIX Credit Alliance, Inc. contends that the transformation rule is not the law in the state of Alabama. ORIX’ argument about what the law should be may well have some merit. If this bankruptcy court were writing on a clean slate, on a question of first impression, it might well reject the transformation rule. However, this court views the Eleventh Circuit’s continued adherence to the rule (readopted within the last 20 months) as binding authority. This court must adhere to the Eleventh Circuit’s position and hold that ORIX’ PMSI has been transformed into a non-purchase money security interest and thus is subordinate to the prior perfected security interest of AmSouth Bank, N.A. As pointed out above, the definition of purchase money security interest in Ala.Code § 7-9-107 (1975) is very narrow: Definitions: “Purchase money security interest.” A security interest is a “purchase money security interest” to the extent that it is (a) taken or retained by the seller of the collateral to" }, { "docid": "16850376", "title": "", "text": "Eleventh Circuit stated a test for recharacterization of a shareholder’s loan in N & D Properties, this Court finds nothing in the opinion that would restrict recharacterization to only those loans made to a debtor by one of its shareholders. 415 B.R. at 879. In First NLC Fin. Servs., LLC, the bankruptcy court, concluded: While the Eleventh Circuit stated a standard for recharacterization of a shareholder loan in N & D Properties, it did not prohibit recharacterization of non-shareholder loans in appropriate circumstances. There is likewise no prohibition to recharacterization of non-share holder loans embodied in any of the various multi-factor tests applied in other Circuit Courts of Appeal and lower court recharacterization opinions. Id. at 880. Thus, the bankruptcy court utilized the multi-factor tests adopted by the circuit courts of appeals in their recent decisions in determining a summary judgment motion brought by putative lender whose loans the creditors’ committee sought to recharacterize as equity. It recognized that other courts in the Eleventh Circuit had employed multi-factor tests, citing, among other cases, In re Biscayne Inv. Group, Ltd., 264 B.R. 765 (Bankr. S.D.Fla.2001) (determining recharacterization claim under thirteen factor test); In re Blevins Concession Supply Co., 213 B.R. 185 (Bankr.M.D.Fla.1997) (determining recharacterization claim in bankruptcy by analyzing thirteen factor test used in tax litigation); Celotex Corp. v. Hillsborough Holdings Corp. (In re Hillsborough Holdings Corp.), 176 B.R. 223, 248 (M.D.Fla.1994) (analyzing thirteen factor test to determine the actual manner, not the form, in which the parties intended to structure the advance at issue). This Court finds that the tests employed in the decisions of the Fourth and Third Circuits in Domier Aviation and SubMi-cron Systems, respectively, are more compelling than the test set forth in N & D Properties, in which the court ruled that initial undercapitalization and the absence of other disinterested lenders are the sole factors to consider in the context of shareholder loans. The Fourth Circuit’s focus on whether the transaction is “arms-length based on a multi-factor approach in Domier Aviation, or the Third Circuit’s “over arching inquiry” as to intent in SubMicron permit a more" }, { "docid": "16592061", "title": "", "text": "Internal Revenue, 800 F.2d 625 (6th Cir.1986). The more such an exchange appears to reflect the characteristics of such an arm’s length negotiation, the more likely such a transaction is to be treated as debt. To aid in analyzing such transactions, Courts have identified several factors which help identify the distinctions between a loan and an equity contribution. The list of factors is not exclusive, and no one factor is predominant, nor are the factors to be given rigidly equal weight. Instead, this Court is to apply these factors to the particular case at hand keeping in mind the specific circumstances surrounding the present factual situation. One Court listed the factors to be considered as including: (1) the names given to the certificates evidencing the indebtedness; (2) the presence or absence of a fixed maturity date; (3) the source of payments; (4) the right to enforce payment of principal and interest; (5) participation in management flowing as a result; (6) the status of the contribution in relation to regular corporate creditors; (7) the intent of the parties; (8) ‘thin’ or inadequate capitalization; (9) identity of interest between creditor and stockholder; (10) source of interest payments; (11) the ability of the corporation to obtain loans from outside lending institutions; (12) the extent to which the advance was used to acquire capital assets; and (13) the failure of the debtor to repay on the due date or to seek postponement. Celotex Corporation v. Hillsborough Holdings Corporation (In re Hillsborough Holdings Corporation), 176 B.R. 223, 248 (M.D.Fla.1994); See also In re Lane, 742 F.2d 1311 (11th Cir.1984); Estate of Mixon v. United States, 464 F.2d 394 (5th Cir.1972). The Sixth Circuit has listed a slightly different, but in many respects very similar cata-logue of factors to consider when evaluating whether the transaction was made at arm’s length. Just as the Celotex Court did, the Sixth Circuit highlighted factors including identity of interest between creditor and stockholder, adequacy or inadequacy of capitalization, the source of repayments, the name given instruments evidencing indebtedness, presence or absence of fixed maturity date and schedule of payments, presence" }, { "docid": "23074394", "title": "", "text": "on the due date or to seek a postponement. Stinnett’s Pontiac Serv., Inc. v. Comm’r, 730 F.2d 634, 638 (11th Cir.1984) (citing Estate of Mixon v. United States, 464 F.2d 394, 402 (5th Cir.1972)). In re Cold Harbor Assocs., L.P., 204 B.R. at 915, discussed both of the above tests in the recharacterization context and applied the factors relevant to that case, and In re Georgetown Bldg. Assocs., 240 B.R. at 137, cited with approval Cold Harbor’s use of these factors in the recharacterization context (but found it unnecessary to adopt formally a specific set of factors). In this case, the District Court applied a seven-factor test used in an unpublished District of Delaware case that was bankruptcy related, Official Comm, of Unsecured Creditors of Color Tile, Inc. v. Blackstone Family Inv. P'ship (In re Color Tile, Inc.), No. Civ. A. 98-358-SLR, 2000 WL 152129 (D.Del. Feb.9, 2000) (Robinson, L). Those factors are (1) the name given to the instrument; (2) the intent of the parties; (3) the presence or absence of a fixed maturity date; (4) the right to enforce payment of principal and interest; (5) the presence or absence of voting rights; (6) the status of the contribution in relation to regular corporate contributors; and (7) certainty of payment in the event of the corporation’s insolvency or liquidation. In re SubMicron Sys., 291 B.R. at 323 (citing In re Color Tile, 2000 WL 152129, at *4). . Research has uncovered only one bankruptcy case discussing whether the capital contribution versus loan determination question is primarily one of law or fact. There the Court concluded that ’’[t]he issue of classification of an advance presents a question of law subject to de novo review.” Celotex Corp. v. Hillsborough Holdings Corp. (In re Hillsborough Holdings Corp.), 176 B.R. 223, 248 (M.D,Fla.l994) (citing Lane v. United States (In re Lane), 742 F.2d 1311 (11th Cir.1984), a tax refund case). . Of course, it could be argued that the Eleventh Circuit did not reach this conclusion of its own accord. When the former Fifth Circuit was split into the Fifth and Eleventh Circuits" } ]

[ { "docid": "22609380", "title": "", "text": "denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503. See also Hecht Co. v. Bowles, supra, 330. It is readily apparent from the foregoing that a decree compelling one to disgorge profits, rents or property ac quired in violation of the Emergency Price Control Act may properly be entered by a District Court once its equity jurisdiction has been invoked under § 205 (a). Indeed, the language of § 205 (a) admits of no other conclusion. It expressly envisages applications by the Administrator for orders enjoining violations of the Act and for orders enforcing compliance with the Act; and it expressly authorizes the District Court, upon a proper showing, to grant “a permanent or temporary injunction, restraining order, or other order.” As recognized in Hecht Co. v. Bowles, supra, 328, the term “other order” contemplates a remedy other than that of an injunction or restraining order, a remedy entered in the exercise of the District Court’s equitable discretion. An order for the recovery and restitution of illegal rents may be considered a proper “other order” on either of two theories: (1) It may be considered as an equitable adjunct to an injunction decree. Nothing is more clearly a part of the subject matter of a suit for an injunction than the recovery of that which has been illegally acquired and which has given rise to the necessity for injunctive relief. To be sure, such a recovery could not be obtained through an independent suit in equity if an adequate legal remedy were available. White v. Sparkill Realty Corp., 280 U. S. 500; Lacassagne v. Chapuis, 144 U. S. 119. But where, as here, the equitable jurisdiction of the court has properly been invoked for injunctive purposes, the court has" } ]

[ { "docid": "723942", "title": "", "text": "to require him to make restitution to tenants of excess rents collected. The trial court granted the injunction, but denied the restitution order because it felt there was no jurisdiction under the statute for restitution. The Supreme Court reversed, finding that the district court’s inherent equitable powers could be used to sustain a restitution order: Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. See also Hecht Co. v. Bowles, supra, 321 U.S. 321, 330, 64 S.Ct. 587, 88 L.Ed. 754. Porter, supra at 398, 66 S.Ct. at 1089 (emphasis added). See also Wyandotte Transportation Co. v. United States, 389 U.S. 191, 200, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288, 291-292, 80 S.Ct. 332, 4 L.Ed. 2d 323 (1960); Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 1970). Finally, we note that the underlying statutory basis for an FTC cease and desist order is § 7 of the Clayton Act. Apropos to our discussion is the Supreme Court’s discussion of that section in United States v. E. I. du Pont de Nemours & Co., 366 U.S. 316, 328-331, 81 S.Ct. 1243, 1251-1253, 6 L.Ed.2d 318 (1961): It cannot be gainsaid that complete divestiture is peculiarly appropriate in cases of stock acquisitions which violate § 7. That statute is specific and “narrowly directed,” .... The very words of § 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control, and it is reasonable to think immediately of the same remedy when § 7 of the" }, { "docid": "18120496", "title": "", "text": "possession of one party and put it into that of another.” Id. at 10. (Internal citations omitted). . The Supreme Court explained in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), that equitable jurisdiction is not limited in the absence of a clear and valid legislative command. Unless a statute, in words or by a necessary inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction must be recognized and applied. Id. (citing Brown v. Swann, 35 U.S. 497, 503, 511, 10 Pet. 497, 9 L.Ed. 508, 511 (1836)). \" 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' \" Id. . \"The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. 137, 170, 1 Crunch 137, 2 L.Ed. 60 (1803); see also Morrison v. Olson, 487 U.S. 654, 694, 108 S.Ct. 2597, 2620-21, 101 L.Ed.2d 569, 607 (1988) (quoting that \" '[w]hile the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.' ” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153, 1199 (1952) (concurring opinion)). .The Supreme Court stated in United States v. Swift & Co., 286 U.S. 106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005-06 (1932), that We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions.... Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always" }, { "docid": "18120494", "title": "", "text": "the opportunity to present their cases nor receive a final decision on the merits. \"Thus when the injunctive aspects of a case become moot on appeal of a preliminary injunction, any issue preserved by an injunction bond can generally not be resolved on appeal, but must be resolved in a trial on the merits.”); see also Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir.1994) (stating that \"a preliminary injunction cannot survive the dismissal of a complaint”). . The court found the fact that \"the term 'final court decision’ [in § 1516a(e)] must be read together with the words that follow, specifically, 'in the action.’ An 'action' does not end when one court renders a decision, but continues through the appeal process. Thus, an appealed CIT decision is not the final court decision in the action.” Timken, 893 F.2d at 339. Moreover, the Federal Circuit found that § 1516a(e) did not \"require liquidation in accordance with an appealed CIT decision, since that section requires that liquidation take place in accordance with the final court decision in the action.” Id. at 339-40. . The Government has in the past argued that \"a decision of the CIT is not final for the purposes of publication of notice until (1) an appeal is decided by this court, or (2) the time for appeal expires.” Timken, 893 F.2d at 338. . Should a losing party appeal, the court does not have discretion to moot the appeal by amending, modifying, or dissolving the injunction so as to permit liquidation of the appellant’s entries prior to a conclusive decision by the appeals court. Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996). . The plaintiff in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 F. 4 (9th Cir.1901) instituted a suit in an attempt to regain possession of his property by means of an injunction. The court stated that \"[t]he function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the" }, { "docid": "6326087", "title": "", "text": "is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508.” (Emphasis added.) The question put at the beginning of the last paragraph of the majority opinion is whether injunctive relief should be denied in “an otherwise proper case” because of the plaintiff’s unclean hands. This is not merely a rhetorical question. In my judgment, it is one that points out the majority's inconsistency, for it is the obligation of the court to determine what is a proper case under the statute. See Mitchell v. Robert DeMario Jewelry, Inc., supra. Determining what is a proper case for the statutory remedy requires construing the statute in light of the general scheme which it portrays and its purposes. The basic purpose of the Act was to ensure democracy within union organizations. See, e. g., S.Rep.No.187, H.Rep.No.741, Conference Rep.No.1147, 86th Cong. 1st Sess. (1959). It is fundamental, however, that no democracy can function if its processes may constantly be disrupted and delayed. Therefore, the interests of the union and its members, as well as those of our society generally, in maintaining orderly union processes are as important as the right of an individual member to challenge those processes. Phillips v. Osborne, 403 F.2d 826 (9th Cir. 1968). The Supreme Court recognized the interests of the unions in NLRB v. Industrial Union of Marine Workers, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1969), the principal case upon which appellee relies, when it noted that “§ 8(b) (1) (A) assures a union freedom of self-regulation where its legitimate internal affairs are concerned.” In addition to the protection provided by § 8(b) (1) (A) we should take note that the statute here in question simply provides that “It" }, { "docid": "16547605", "title": "", "text": "of that jurisdiction. And since the public interest is involved in a proceeding of .this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. * * * [T]he court may go beyond the matters immediately underlying its equitable jurisdiction * * * and give whatever other relief may be necessary under the circumstances. * * “ ‘Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. * * *' 328 U.S., at 397-398, 66 S.Ct. at page 1089.” In the Mitchell case, the Court authorized mandatory injunctive relief to provide restitution of lost wages unjustly retained by defendants. It may be suggested that enforcement of the Securities Exchange Act, like the Fair Labor Standards Act, purposes to vindicate public rather than private rights even though private restitution is the remedy employed. Wirtz v. Malthor, 391 F.2d 1 (9th Cir. 1968); Wirtz v. Milton J. Wershow Co., 416 F.2d 1071, 9th Cir. 1969. Analogously, in Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965), the theory of unjust enrichment was applied to require a defrauding buyer of stock in violation of Rule 10b-5 to disgorge his profits to the seller which might be greatly in excess of the seller’s actual damages and this despite a statutory prohibition of a recovery in excess of actual damages. 15 U.S.C. § 78bb. Cf. Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967). Thus, the broad reach of equitable relief under the Securities Exchange Act was recognized. The fraud and deception in the sale of securities had concomitantly a direct impact on the Association through the alleged over-solicitation of" }, { "docid": "23196277", "title": "", "text": "clear that such a remedy is authorized by the district court’s inherent equitable powers. Nothing in DeBeers is to the contrary. Because the injunction issued in Reebok II freezing Betech’s assets was a provisional remedy of the same equitable character as the final relief in the form of an accounting of Betech’s profits the district court was authorized to award, the court retained the inherent equitable power to issue that provisional relief pending its final award. D. Despite the presence of such inherent power to issue provisional remedies ancillary to its authority to provide final equitable relief, Congress may deprive the federal courts of that power by establishing a comprehensive enforcement scheme containing the exclusive remedies for a given statutory violation. See Religious Technology Center v. Wollersheim, 796 F.2d 1076, 1088 (9th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987). However, Congress’s intent to adopt such an exclusive regime must be clear: a strong presumption militates against any such finding. As the Supreme Court stated almost a half-century ago: Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction_ Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508 (1836). Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1088, 90 L.Ed. 1332 (1946); see also Los Angeles Trust Deed and Mortgage Exchange v. SEC, 285 F.2d 162, 182 (9th Cir.1960), cert. denied, 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961) (“Congress must be taken to have acted cognizant of the historic power of equity to provide complete relief in the" }, { "docid": "8133682", "title": "", "text": "limited the exercise of the inherent equitable jurisdiction of a court of bankruptcy which; the Supreme Court ruled in the Avon Park, case (311 U.S. p. 146, 61 S.Ct. 162) “* * * is not dependent on expressed’ statutory provisions” of the Bankruptcy,Act. In that respect the appellant’s con-, tention does violence to the well-established rule, recently re-stated in Porter v. Warner Holding Co., 66 S.Ct. 1086, 1089, 90 L.Ed. 1332, that the inherent equitable power of the district court available for, the purpose and complete exercise of its-jurisdiction “* * * is not to be denied or limited in the absence of a clear and valid legislative command.” Said the Court, (66 S.Ct. 1089, 90 L.Ed. 1332): “* * * Unless a statute in so many* words, or by a necessaiy and inescapable inference, restricts the court’s jurisdiction, in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The-great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508 [511]. See also Hecht Co. v. Bowles, supra, 321 U.S. [321], 330, 64 S.Ct. [587], 592 [88 L.Ed. 754, 761].” Certainly neither Section 249 (nor-its legislative history as cited by the appellant) “in so many words,” or by a “neces- ?'¡ry and inescapable inference” can be interpreted as restricting the bankruptcy court’s jurisdiction in equity or the application of basic equitable principles to the conduct of fiduciaries as defined by the Supreme Court in the Woods and Avon Park cases. The following quotation from the final report of the Senate Committee, Sen.Rep. No.1916, 75th Cong., 3d Sess.(1938), p. 19, is dearly dispositive of any contention that Section 2-19 or any other section of Chapter X was intended to limit the equity jurisdiction of the bankruptcy court. Said the report on the subject: “* * * it (section 77B) gave the courts the power to scrutinize the compen-sa! ion and activities of the persons who participated in reorganization proceedings. These were signal gains. All of them are preserved and strengthened in" }, { "docid": "23196278", "title": "", "text": "otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction_ Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508 (1836). Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1088, 90 L.Ed. 1332 (1946); see also Los Angeles Trust Deed and Mortgage Exchange v. SEC, 285 F.2d 162, 182 (9th Cir.1960), cert. denied, 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961) (“Congress must be taken to have acted cognizant of the historic power of equity to provide complete relief in the light of statutory purposes.”). Betech contends that the passage of the Lanham Act deprived the district court of its inherent power to issue equitable remedies in cases arising under that Act. Betech relies primarily on Religious Technology Center v. Wollersheim, 796 F.2d 1076 (9th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987) to support that contention. Woller-sheim held that injunctive relief was not available to a private plaintiff in a civil suit under the Racketeer Influenced and Corrupt Organization (“RICO”) Act. See id. at 1077-89. Our ruling in Wollersheim was based upon an extensive review of the language and legislative history of the RICO Act, see id. at 1082-89; based on that review, we concluded that “Congress did not intend to give private RICO plaintiffs any right to injunctive relief.” Id. at 1088; see also id. (“For civil RICO, there are strong indicia of congressional intent against any implied injunctive relief remedy. Similarly, there is no indication in the language of section 1964 that civil RICO was not intended, as" }, { "docid": "8765680", "title": "", "text": "district courts. Section 15 invokes the equity jurisdiction of the district courts to “prevent and restrain” violations of the Clayton Act. Appellants would have us interpret this language to authorize the district court to act against violations only prior to the time the acquisition actually occurs. Allegedly, after an illegal acquisition occurs it becomes a “fait accompli ” and can no longer be “prevented” or “restrained”. Thus, Aqua Media concedes the authority of the district court to grant relief against sellers prior to consummation of a disputed acquisition agreement, but contends no authority to fashion relief exists if the buyer and seller are fortunate enough to finalize their purchase-sale contract before the acquisition is challenged. The short answer to appellants’ contention is that their reading of § 15 strains the normal meaning of the terms “prevent” and “restrain” far out of perspective. Moreover, as previously noted, the Supreme Court in Porter v. Warner Holding Company, supra at 398, 66 S.Ct. 1086, 1089 has precluded us from implying, where not explicit, a statutory restriction of the district court’s inherent equity jurisdiction: “. . . the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508.” See also Mitchell v. DeMario Jewelry, supra, 361 U.S. at 291, 80 S.Ct. 332. Furthermore, the Supreme Court has given us explicit direction as to the scope of relief affordable under § 15: “. . . The relief which can be afforded under [§ 15] is not limited to the restoration of the status quo ante. There is no power to turn back the clock. Rather, the relief must be directed to that which is ‘necessary and appropriate in the public interest to eliminate" }, { "docid": "6326086", "title": "", "text": "similar to that involved in Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). In Mitchell the Supreme Court held that sections 15(a) (3) and 17 of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 215(a) (3), 217, which granted the District Courts jurisdiction to enjoin the discharge of employees for having filed actions against their employers, carried with them the full equitable powers of the District Courts. The provisions there in question are comparable to those with which we are here concerned, those guaranteeing a member’s right to sue his union. The question involved in Mitchell was whether the District Courts had been disempowered, by reason of the Fair Labor Standards Act, from rendering equitable relief beyond the injunctive power specifically conferred. In answering the question in the negative, the Supreme Court principally relied upon language found in Porter v. Warner Holding Co., 328 U.S. 395, 397, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): “ * * * the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508.” (Emphasis added.) The question put at the beginning of the last paragraph of the majority opinion is whether injunctive relief should be denied in “an otherwise proper case” because of the plaintiff’s unclean hands. This is not merely a rhetorical question. In my judgment, it is one that points out the majority's inconsistency, for it is the obligation of the court to determine what is a proper case under the statute. See Mitchell v. Robert DeMario Jewelry, Inc., supra. Determining what is a proper case for the statutory remedy requires construing the statute in light of the general" }, { "docid": "18120495", "title": "", "text": "in the action.” Id. at 339-40. . The Government has in the past argued that \"a decision of the CIT is not final for the purposes of publication of notice until (1) an appeal is decided by this court, or (2) the time for appeal expires.” Timken, 893 F.2d at 338. . Should a losing party appeal, the court does not have discretion to moot the appeal by amending, modifying, or dissolving the injunction so as to permit liquidation of the appellant’s entries prior to a conclusive decision by the appeals court. Hosiden Corp. v. Advanced Display Mfrs. Of America, 85 F.3d 589, 591 (Fed.Cir.1996). . The plaintiff in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 F. 4 (9th Cir.1901) instituted a suit in an attempt to regain possession of his property by means of an injunction. The court stated that \"[t]he function of an injunction is to afford preventive relief, not to redress alleged wrongs which had been committed already. An injunction will not be used to take property out of the possession of one party and put it into that of another.” Id. at 10. (Internal citations omitted). . The Supreme Court explained in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), that equitable jurisdiction is not limited in the absence of a clear and valid legislative command. Unless a statute, in words or by a necessary inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction must be recognized and applied. Id. (citing Brown v. Swann, 35 U.S. 497, 503, 511, 10 Pet. 497, 9 L.Ed. 508, 511 (1836)). \" 'The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.' \" Id. . \"The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they have a discretion.” Marbury v. Madison, 5 U.S. 137, 170, 1 Crunch 137, 2 L.Ed. 60 (1803); see also Morrison v. Olson, 487 U.S. 654," }, { "docid": "723941", "title": "", "text": "F.2d 342 (9th Cir. 1969). In Herbold, the Ninth Circuit reasoned that “Congress, in prescribing a civil action for monetary penalties [15 U.S.C. § 45(0], indicated no intent that the equitable powers of District Courts to issue injunctions might also be invoked.” Id. at 344. The court further observed that: When a statute so clearly provides certain, specific sanctions for violations of a Cease and Desist Order, we cannot believe that the courts should reach beyond the statutory provisions and exert a power which, apparently, the Congress has deliberately withheld. Id Here, the district court held that 15 U.S.C. § 45(1), “though making no mention thereof, does not attempt to limit the exercise of the court's general equitable powers . . . . ” United States v. Beatrice Foods Co., 351 F.Supp. 969, 971 (D.Minn.1972). We find ample authority for this reasoning. In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the Price Administrator brought suit to enjoin a landlord from violating the Emergency Price Control Act and to require him to make restitution to tenants of excess rents collected. The trial court granted the injunction, but denied the restitution order because it felt there was no jurisdiction under the statute for restitution. The Supreme Court reversed, finding that the district court’s inherent equitable powers could be used to sustain a restitution order: Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. See also Hecht Co. v. Bowles, supra, 321 U.S. 321, 330, 64 S.Ct. 587, 88 L.Ed. 754. Porter, supra at 398, 66 S.Ct. at 1089 (emphasis added). See also Wyandotte Transportation Co. v. United States, 389" }, { "docid": "13979704", "title": "", "text": "the District Court, in exercising this jurisdiction, “to do equity and to mould each decree to the necessities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 [64 S.Ct. 587, 592, 88 L.Ed. 754.]. Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508]. See also Hecht Co. v. Bowles, supra, [321 U.S.] 330 [64 S.Ct. 592]. Porter v. Warner Holding Co., 328 U.S. 395, 397-98, 66 S.Ct. 1086, 1088-89, 90 L.Ed. 1332 (1946). In Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Supreme Court reaffirmed these principles when it stated: When Congress entrusts to an equity court the enforcement of prohibitions in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes. As this Court long ago recognized, ‘there is inherent in the Courts of Equity a jurisdiciton to ... give effect to the policy of the legislature.’ Clark v. Smith, 13 Pet. 195, 203. 361 U.S. at 391.92, 80 S.Ct. at 334-35. Applying these principles to § 13(b), there is no indication that Congress intended to restrict the court’s broad inherent equitable powers. F.T.C. v. United States Oil & Gas Corp., 748 F.2d 1431 (11th Cir.1984); F.T.C. v. H.N. Singer, Inc., 668 F.2d 1107 (9th Cir.1982). Accordingly, “a grant of jurisdiction such as that contained in § 13(b) carries with it the authorization for a district court to exercise the full range of equitable remedies traditionally available to it.” F.T.C. v. Southwest Sunsites, Inc., 665 F.2d 711, 718 (5th Cir.1982) (Emphasis added). In the exercise of" }, { "docid": "16547604", "title": "", "text": "jurisdiction here contested ‘must be expressly conferred by an act of Congress or be necessarily implied from a congressional enactment.’ 260 F.2d (929), at 933. In this the court was mistaken. The proper criterion is that laid down in Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332. This Court there dealt with an action brought by the Price Administrator under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925, to enjoin the collection of excessive rents and to require the landlord to reimburse its tenants for moneys paid as a result of past violations. We upheld the implied power to order reimbursement, in language of the greatest relevance here: “ ‘Thus the Administrator invoked the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act. Such a jurisdiction is an equitable one. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and com píete exercise of that jurisdiction. And since the public interest is involved in a proceeding of .this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. * * * [T]he court may go beyond the matters immediately underlying its equitable jurisdiction * * * and give whatever other relief may be necessary under the circumstances. * * “ ‘Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503, 9 L.Ed. 508. * * *' 328 U.S., at 397-398, 66 S.Ct. at page 1089.” In the Mitchell case, the Court authorized mandatory injunctive relief to" }, { "docid": "6361237", "title": "", "text": "District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. Power is thereby resident in the District Court, in exercising this jurisdiction, “to do equity and to mould each decree to the necessities of the particular case.” Id. at 398, 66 S.Ct. 1086 (quoting Hecht Company v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 88 L.Ed. 754 (1944)) (citation omitted). The Porter Court went on to state: [T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words or by a necessary and inescapable inference restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences or doubtful conclusions.” Id. (quoting Brown v. Swann, 35 U.S. (10 Pet.) 497, 9 L.Ed. 508). The Supreme Court affirmed the Porter principle in Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 291-92, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). The Court wrote: When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes. As this Court long ago recognized, ‘there is inherent in the Courts of Equity a jurisdiction to... give effect to the policy of the legislature.’ Clark v. Smith, 38 U.S.(13 Pet.) 195, 203, 10 L.Ed. 123. Id. Based on the principle of statutory construction set forth in Porter and reaffirmed in DeMario, five courts of appeals and numerous district courts have permitted the FTC to pursue monetary relief under § 13(b). See FTC v. Febre, 128 F.3d 530, 534 (7th Cir.1997); FTC v. Gem Merchandising, 87 F.3d 466, 470 (11th Cir.1996); FTC" }, { "docid": "22087380", "title": "", "text": "any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. TVA v. Hill, 437 U.S. 153, 193 [98 S.Ct. 2279, 2301, 57 L.Ed.2d 117] (1978); Hecht Co. v. Bowles, supra, [321 U.S.] at 329 [64 S.Ct. at 591], These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a “practice with a background of several hundred years of history,” Hecht Co. v. Bowles, supra, at 329 [64 S.Ct. at 591], a practice of which Congress is assuredly well aware. Of course, Congress may intervene and guide of control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. Hecht Co. v. Bowles, supra, at 329 [64 S.Ct. at 591], As the Court said in Porter v. Warner Holding Co., 328 U.S. 395, 398 [66 S.Ct. 1086, 1089, 90 L.Ed. 1332] (1946): “Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508] ...” Id. at -, 102 S.Ct. at 1803." }, { "docid": "22992521", "title": "", "text": "act so as to adjust and reconcile competing claims and so as to accord full justice to all the real parties in interest; if necessary, persons not originally connected with the litigation may be brought before the court so that their rights in the subject matter may be determined and enforced. In addition, the court may go beyond the matters immediately underlying its equitable jurisdiction and decide whatever other issues and give whatever other relief may be necessary under the circumstances. Only in that way can equity do complete rather than truncated justice. Camp v. Boyd, 229 US 530, 551, 552 57 L ed 1317, 1326, 1327, 33 S Ct 785 [793]. (Emphasis added.) “Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. (US) 497, 503, 9 L ed 508, 511. See also Hecht Co. v. Bowles, supra (321 US 330, 88 L ed 761, 64 S Ct 587).” Warner Holding, 328 U.S. at 398, 66 S.Ct. at 1089, 90 L.Ed. at 1336, 1337. In Public Service Commission of Missouri v. Brashear Freight Lines (Brashear Freight), 312 U.S. 621, 61 S.Ct. 784, 85 L.Ed. 1083 (1941), many common carriers secured in a District Court an invalid injunction against enforcement of a valid regulatory statute of Missouri imposing taxes and license fees on motor carriers operating in interstate commerce. The Supreme Court held that the District Court had the duty and power to assess damages including costs of litigation, taxes and fees, caused by the improperly granted injunction, under which the challenged taxes and license fees had been deposited in escrow, stating: “Under long settled equity practice, courts of chancery have discretionary power to assess damages sustained by parties who have" }, { "docid": "6502264", "title": "", "text": "ment at 3 (Jan. 20,1983). The State argues that § 1415(e)(3) does not freeze an inappropriate placement for the pendency of review and thereby bar a court from exercise of its traditional powers of equity to fashion a decree which considers all pertinent circumstances. The source of this confusion, the State argues, rests in large part with our decision in Doe v. Anrig, 692 F.2d 800, that (e)(3) “amounts to an automatic stay preventing any change in a child’s location and education program, except by agreement of the parties ”. Id. at 810 (emphasis added). The State maintains that this decision is inconsistent with our decision in Burlington, 655 F.2d at 434, where we affirmed the availability of “interim judicial powers of equity.” To the degree that Anrig can be read as construing (e)(3) to preempt judicial powers of equity and to establish in their stead an absolute freeze on interim placement, program and services, we overrule it. Section 1415(e)(2) is an express grant of authority to district courts to fashion all appropriate equitable relief. The power ultimately to award such relief ordinarily includes the power to issue preliminary relief in the appropriate exercise of discretion. Moreover, in the absence of a plain congressional intention to withdraw them, traditional powers of equity remain in the district court to enforce the Act. As the Supreme Court admonished in Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1981), and Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): [T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508] .... Especially in view of the expressly granted" }, { "docid": "13979703", "title": "", "text": "embrace the particular FTC claim at issue in the Washington district action. The FTC argues that under § 13(b), courts have inherent equitable powers to grant monetary relief even though Evans’ alleged violations have completely ceased. Succinctly stated, the issue is whether, incident to its express statutory authority to issue a permanent injunction under § 13(b), a court may exercise the traditional inherent powers of a court of equity and grant ancillary relief when the alleged practices have ceased and are not likely to recur. In making this determination, the often quoted principles are clear. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. Virginian R. Co. v. System Federation, 300 U.S. 515, 552 [57 S.Ct. 592, 601, 81 L.Ed. 789]. Power is thereby resident in the District Court, in exercising this jurisdiction, “to do equity and to mould each decree to the necessities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 [64 S.Ct. 587, 592, 88 L.Ed. 754.]. Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. “The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.” Brown v. Swann, 10 Pet. 497, 503 [9 L.Ed. 508]. See also Hecht Co. v. Bowles, supra, [321 U.S.] 330 [64 S.Ct. 592]. Porter v. Warner Holding Co., 328 U.S. 395, 397-98, 66 S.Ct. 1086, 1088-89, 90 L.Ed. 1332 (1946). In Mitchell v. DeMario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Supreme Court reaffirmed these principles when it" }, { "docid": "22700950", "title": "", "text": "of right, even though irreparable injury may otherwise result to the plaintiff,” and that “where an injunction is asked which will adversely affect a public interest for whose impairment, even temporarily, an injunction bond cannot compensate, the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Yakus v. United States, supra, at 440 (footnote omitted). The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. TVA v. Hill, 437 U. S., at 193; Hecht Co. v. Bowles, 321 U. S., at 329. These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a “practice with a background of several hundred years of history,” Hecht Co. v. Bowles, supra, at 329, a practice of which Congress is assuredly well aware. Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. Hecht Co. v. Bowles, supra, at 329. As the Court said in Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946): “Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’ Brown v. Swann, 10 Pet. 497, 503 . . . .” In TVA v. Hill, we held that Congress had foreclosed the exercise of the usual discretion possessed by a court of equity. There, we thought that “[o]ne would be hard pressed to find a statutory provision" } ]

[ { "docid": "8192445", "title": "", "text": "the class, he seeks a permanent injunction prohibiting Safeway and its agents from discriminating on the basis of race against members of the class in all. aspects of the employment relationship. His prayer for back pay on behalf of the class has been stricken from the complaint. The evidence reveals that Taylor applied on several occasions for employment with Safeway and was hired on a probationary basis as an order selector in Safeway’s frozen food warehouse in Denver. He was so employed for three weeks, during which time he was trained and expected to progress toward the required production standard. Mr. Taylor kept largely to himself, asking neither help nor advice from the other employees. The evidence also reveals that on one occasion his work was criticized by his foreman Walker, that Walker’s attitude toward blacks in his charge was generally hostile, and that Walker pursued a practice of favoring some employees over others in the distribution of order assignments. The evidence finally discloses that Walker discharged Taylor before the end of his probationary period for low production on the basis of records that Walker himself maintained and that the discharge was approved by Walker’s superiors, Aleóla and Scherzer. II. Plaintiff’s Individual Claim At the outset the plaintiff Taylor need only make a prima facie showing that some unlawful discrimination was practiced against him in the course of the employment relationship. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For his cause of action Taylor alleges that Safeway, by and through its agents, practiced discrimination against him by refusing at first to hire him, failing to train him adequately for his job, discharging him without cause, and refusing to rehire or transfer him. We shall examine each of these allegations in turn and conclude as to each whether the plaintiff has established a prima facie case of discrimination. A. Hiring Taylor alleges that prior to his employment by Safeway he interviewed for jobs with the company and was told by Scherzer, Safeway’s distribution center manager, that there were no jobs available. No evidence has" } ]

[ { "docid": "8733464", "title": "", "text": "II. We must consider whether' the defendant’s affidavits, depositions and other materials established the absence of a genuine issue of material fact and defendant’s right to judgment as a matter of law (1) as to plaintiff’s Title VII claim of discriminatory treatment because of her German national origin, and (2) as to the company’s defense that in any event défendant had a legitimate non-discriminatory reason for discharging plaintiff. A. Establishment of prima facie case of discrimination The Supreme Court has held that a prima facie case of employment discrimination is established when plaintiff demonstrates that: (1) she belongs to a racial minority; (2) she applied and was qualified for a job the employer was trying to fill; (3) although qualified, she was rejected; and (4) the employer continued to seek ap-' plicants 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 (1972). See also EEOC v. University of New Mexico, 504 F.2d 1296, 1305 (10th Cir.1974). Although the four McDonnell Douglas factors were not cast as a rigid rule to apply to all factual situations, courts have adapted the formulation to fit cases involving claims of discriminatory discharge. This court has held that a discharged employee establishes a prima facie case by satisfying the-, first three requirements of McDonnell Douglas and by producing evidence that someone was hired in her place after she was fired. Crawford v. Northeastern Oklahoma State University, 713 F.2d 586, 588 (10th Cir.1983). Plaintiff has made no showing that her job remained available after her discharge, as indicated in Ray v. Safeway Stores, Inc. However, she has successfully demonstrated that she satisfies - even the stricter test established by some courts. First, plaintiff belongs to a minority based on national origin; she was born in Germany in 1936, moved to the United States twenty years later, and first obtained her American citizenship in 1959. Second, she made a showing in her deposition and other evidentiary materials that she was qualified for her job; that she was a hard worker capable of handling different duties; and" }, { "docid": "16684612", "title": "", "text": "switch jobs, an order that the company was authorized to make. The plant manager testified that he felt it was necessary to deal firmly with insubordination to prevent it from spreading to other plant employees and affecting overall plant operation. Rec., vol. II, at 129-130. This legitimate business purpose is sufficient to rebut the prima facie case presented by Ray. Ray therefore must carry the burden of proving that the legitimate justification offered by Safeway was merely a pretext for discrimination. McDonnell Douglas, supra; Furnco, supra. Relevant to such a showing would be evidence that white employees in substantially similar circumstances were treated differently. McDonnell Douglas, supra. Ray has made no such showing. In his brief, Ray offers only one reason to support his contention that his discharge was a mere pretext for discrimination: that no alternatives for termination were ever discussed, such as requesting that his white co-worker be given the same choice offered to Ray, or suspending Ray without pay. Appellant’s Brief at 8. On the contrary, however, as we previously noted, both Ray and his white co-worker were required to switch job duties and neither was satisfied with the arrangement. Nevertheless, Ray’s white co-worker did not refuse to make the change, and there was no evidence that anyone else had ever refused a direct order with regard to job assignments. In addition, Ray admitted at trial that an alternative to termination was discussed. In fact, Safeway offered to reinstate him with two week’s suspension without pay, an offer which he refused. Rec., vol. II, at 44-45. Other relevant factors in a showing of pretext include Safeway’s general policy and practice with respect to minority employment, and Safeway’s treatment of Ray prior to termination. McDonnell Douglas, supra. No evidence was offered by Ray to show that Safeway had a general policy of treating black employees differently than white employees. Ray did offer evidence that the plant superintendent, Grant Smith, made a derogatory remark about Ray’s race. Rec., vol. II, at 162. However, Smith denied making the remark, Rec., vol. II, at 111, and the Master expressed serious concern" }, { "docid": "16684614", "title": "", "text": "about the credibility of the witness who testified about the alleged derogatory comment. Rec., vol. I, at 33. Moreover, the evidence shows that Robert Gridley, the plant manager who had ultimate authority for discharging Ray, Rec., vol. II, at 91-92, 129, was favorably impressed with Ray and encouraged him to take advantage of a management training program which Safeway offered its employees. Rec., vol. II, at 128. In addition, when Ray objected to the early starting time of 5:00 a. m. required in connection with the proposed job change, it is uncontested that he was readily accommodated and the time was changed to 6:30 a. m. Upon review of the evidence as a whole, we are not left with a definite and firm conviction the Master was mistaken in concluding that the decision to discharge Ray was based on Ray’s conduct as an individual, and that his race was irrelevant. Accordingly, we affirm. . The prima facie test set forth in Taylor v. Safeway Stores, Inc., 365 F.Supp. 468 (D.Colo. 1973), rev’d in part on other grounds, 524 F.2d 263 (10th Cir. 1975), and referred to by the Master, is stricter than the McDonnell Douglas test and should not have been applied. However, in view of our conclusions herein, the error was harmless." }, { "docid": "22389682", "title": "", "text": "this court decided that plaintiff had failed to establish a different prong of the prima facie case. In Allen v. Denver Public School Board, 928 F.2d 978, 985 (10th Cir.1991), a Title VII case, the district court required a plaintiff alleging wrongful termination to show as part of a prima facie case that “[n]onminorities in the same or similar situations were not disciplined the same or similarly.” This court affirmed the district court’s decision to dismiss the plaintiffs claim for her failure to establish a prima facie case by making this showing. See id. at 985-86. Allen’s holding, however, should be disapproved as inconsistent with our earlier precedent which does not require the replacement employee to be of nonprotected status. See Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir.1996) (“[W]hen faced with an intra-circuit conflict, a panel should follow earlier, settled precedent over a subsequent deviation therefrom.”). As noted earlier, many of our earlier cases required as the fourth prong of the plaintiffs prima facie case only that the job was not eliminated after the plaintiffs discharge without requiring that the replacement employee be of a nonprotected status. See, for example, Ray v. Safeway Stores, a Title VII case, where this court held that a plaintiff who was discharged for insubordination made out a prima facie case by showing that “after his discharge the job remained available.” Ray, 614 F.2d at 730; see also Crawford, 713 F.2d at 588; Williams, 641 F.2d at 843. In fact, this court observed in Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1410 n. 3 (10th Cir.1984), that some other courts had adopted prima facie tests stricter than that set forth in Ray, specifically noting the requirement in several other circuits that plaintiff show “that the employer ... assigned a non-minority person to her job.” The most definitive Tenth Circuit case on the formulation of the fourth prong of a plaintiffs prima facie case pursuant to McDonnell Douglas is Perry v. Woodward. There, we held that the fourth prong of a plaintiffs prima facie test in a discharge case should be the" }, { "docid": "22389683", "title": "", "text": "eliminated after the plaintiffs discharge without requiring that the replacement employee be of a nonprotected status. See, for example, Ray v. Safeway Stores, a Title VII case, where this court held that a plaintiff who was discharged for insubordination made out a prima facie case by showing that “after his discharge the job remained available.” Ray, 614 F.2d at 730; see also Crawford, 713 F.2d at 588; Williams, 641 F.2d at 843. In fact, this court observed in Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1410 n. 3 (10th Cir.1984), that some other courts had adopted prima facie tests stricter than that set forth in Ray, specifically noting the requirement in several other circuits that plaintiff show “that the employer ... assigned a non-minority person to her job.” The most definitive Tenth Circuit case on the formulation of the fourth prong of a plaintiffs prima facie case pursuant to McDonnell Douglas is Perry v. Woodward. There, we held that the fourth prong of a plaintiffs prima facie test in a discharge case should be the same as for a failure to hire claim. See Perry, 199 F.3d at 1140. Thus, as in a failure to hire case, a plaintiff alleging discriminatory discharge ordinarily need not show that a person outside of the protected class was hired to fill his former position in order to make out a prima facie case of discrimination. See Perry, 199 F.3d at 1137-38. This is because comparison to a person outside of the protected class in the fourth prong of the prima facie case is.unnecessary to create an inference of discriminatory discharge. See Perry, 199 F.3d at 1140. We explained in Perry: When viewed against the backdrop of historical workplace discrimination,. an employee who belongs to a racial minority and who eliminates the two most common, legitimate reasons for termination, 1.e., lack of qualification or the elimination of the job, has at least raised an inference that the termination was based on a consideration of impermissible factors. The firing of a qualified minority employee raises the inference of discrimination because it is facially illogical to" }, { "docid": "16684609", "title": "", "text": "at 87. The plant superintendent, Grant Smith, attempted to resolve the conflict by having Ray and the other employee switch duties. It was hoped that this change would give each man a better appreciation of the other person’s work. Rec., vol. II, at 84. Such a switch had previously been used by the superintendent with two other employees. Rec.', vol. II, at 88-90. Neither Ray nor his co-worker wanted to change job duties, but both originally agreed to do so. Rec., vol. II, at 84, 87-88, 140. Because Ray objected to the 5:00 a. m. starting time of his co-worker, it was agreed that Ray could start at 6:30 a. m. instead. On the morning Ray was to begin his new duties, he informed his shift supervisor that he would not change jobs. When he persisted in his refusal, he was terminated for insubordination. Safeway later offered to reinstate Ray conditioned on certain disciplinary action but Ray refused. The Master found that Ray’s discharge was not racially motivated. Ray appeals this finding as contrary to the weight of the evidence, contending the evidence supports a finding that the valid business reason offered by the company to rebut the prima facie case of discrimination was a pretext for racial discrimination. A master’s findings may not be disturbed unless clearly erroneous. Fed.R. Civ.P. 53. In applying this standard, the test is whether we are left “with the definite and firm conviction that a mistake has been committed.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Reyes v. Hoffman, 580 F.2d 393 (10th Cir. 1978). Under the three-part analysis of a claim of employment discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977), Ray must first establish a prima facie case of employment discrimination. We" }, { "docid": "8733475", "title": "", "text": "not have been resolved by a summary judgment dismissing plaintiff’s Title VII claim. Finally, plaintiff stated in her affidavit that she had previously filed a discrimination complaint with the EEOC against the defendant and that officials from anti-discrimination agencies visited defendant’s plant in November 1976. They interviewed her and she told them that she was harassed on the job. Her discharge occurred approximately two months later in January 1977. I R. 188. The EEOC director was unable to verify the time and extent of the visit to the defendant’s facilities. I R. 47. However, by reviewing the entire record in the light most favorable to plaintiff, one could infer that plaintiff’s discharge closely followed EEOC’s inspection of defendant’s plant and was unlawfully motivated. Such evidence would tend to show that plaintiff’s termination was predicated on discriminatory, rather than legitimate, motives. Ill Conclusion In sum, the plaintiff presented proof of facts and circumstances from which different inferences might be drawn and summary judgment was not justified. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Accordingly, we must reverse the summary judgment in favor of defendant and remand the case for further proceedings in accord with this opinion. . Plaintiff asserted in the court below that she was also basing her claim on harassment and on retaliation for a discrimination complaint she had filed with the EEOC in 1975. II R. 4, 5. We will not address these specific claims because plaintiff failed to urge them on appeal. Some of the evidence which would support those claims is referred to below because of its relevance to the disparate treatment claims of plaintiff. . McDonnell Douglas, 411 U.S. at 802, n. 13, 93 S.Ct. at 1824 n. 13. . See also Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir.1980), where this court held that a prima facie case is established by meeting the first three McDonnell Douglas requirements and demonstrating the job remained available after the discharge. Other courts have developed stricter tests; for example, some courts have held that, in addition" }, { "docid": "5456813", "title": "", "text": "about hiring and promotion in supervisory and managerial jobs cannot realistically be made using objective standards alone. Thus, it is especially important for courts to be sensitive to possible bias in the hiring and promotion process arising from such subjective definition of employment criteria.” See also Barnett v. W. T. Grant Co., 518 F.2d 543, 550 (4th Cir. 1975), (“Nonobjective hiring standards are always suspect because of their capacity for masking racial basis [sic].”) On remand, it is incumbent upon the trial court to carefully weigh the evidence presented by the District in determining if the District’s hiring and promotion procedures are justified under the business necessity standard. II. The Individual Claim Williams also challenges the trial court’s finding that the District’s failure to hire her for the 1973-74 school year did not constitute discriminatory treatment. As indicated earlier, in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, the Supreme Court set forth a three-step analysis for evaluating a claim of “disparate treatment” under Title VII. See also Furnco, 438 U.S. 567, 98 S.Ct. at 2944. First, the plaintiff must establish a prima facie case of discrimination by showing (1) that he belongs to a protected class; (2) that he applied and was qualified for the job, (3) that he was nevertheless rejected; and (4) that after his rejection the position remained open and the employer continued to seek applicants with similar qualifications. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir. 1980). Where a prima facie case is established, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the plaintiff’s rejection. Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. See also Safeway Stores, Inc., 614 F.2d at 731. If the employer satisfies this burden, the plaintiff must prove that the reason offered by the employer for his discharge was merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1825. Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. The trial court held the District successfully" }, { "docid": "8967719", "title": "", "text": "and drafting his findings. He rendered his findings of fact on March 3, 1993. We ordered the parties to serve their objections and responses to the Special Master’s findings of fact to the Special Master, and on April 1 and April 2, 1993, held a hearing at which FIA’s counsel exhaustively questioned the Special Master about FIA’s objections to the findings of fact. In his 487 detailed findings, the Special Master concluded, in essence, that FIA failed timely and responsibly to investigate and respond to Turner’s claims under the surety bonds made in consequence of IBG’s default. The Special Master found that the excess cost and expenses Turner reasonably incurred in completing IBG’s work totalled $1,045,940.75. Pursuant to Fed.R.Civ.P. 53(e) and 52(a), the plaintiffs moved that we adopt the Special Master’s findings, as well as make our conclusions of law based thereon and direct the entry of judgment in their favor. FIA has filed its objections to certain of the Special Master’s findings, and has prayed for judgment in its favor. Legal Standard Governing Review of the Special Master’s Findings Fed.R.Civ.P. 53(e)(2) provides, in relevant part, that “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” See also NLRB v. International Union of Operating Engineers, 659 F.2d 379, 383 (3d Cir. 1981). In applying Rule 53’s “clearly erroneous” standard, the Supreme Court has stated that it requires affirmation of the Special Master’s findings unless the district court is left “... with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Operating Engineers, supra, 659 F.2d at 383; Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir.1980). This review standard is congruent with that which Courts of Appeal apply when they review district courts’ Rule 52 findings. See generally, Charles A. Wright and Arthur R. Miller, 9 Federal Practice and Procedure, Civil, § 2614 at 809-810 (1971) (“... exactly the same as the standard governing review" }, { "docid": "15655638", "title": "", "text": "race, national origin or sex. Although scanty, these findings suffice to support the trial court’s ultimate finding that the Department did not discriminate or retaliate against Lujan. Lugan urges, however, that the findings are nevertheless inadequate because they are not framed in terms of the three-step analysis of a Title VII action set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d, 668 (1973). Under McDonnell Douglas, the employee must first establish a prima facie case of discrimination by showing that he “(1) belongs to a racial minority; (2) that he was qualified for his job; (3) that, despite his qualifications, he was discharged; and (4) that after his discharge the job remained available.” Id. at 802, 93 S.Ct. at 1824; Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir. 1980). Once a prima facie case is established, the employer must articulate some legitimate, nondiscriminatory reason for termination. Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25, 99 S.Ct. 295, 296, 58 L.Ed.2d 216 (1978); Furnco Construction Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977). After a sufficient reason is presented by the employer, the employee must then prove that the justification was merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. This court has held that where the conduct of the trial substantially follows the guidelines in McDonnell Douglas, “the fact that the trial judge’s findings and conclusions are not couched in the precise language of McDonnell Douglas [and] Furnco . does not necessitate a reversal.” James v. Newspaper Agency Corp., 591 F.2d 579, 583 (10th Cir. 1979). The record reflects here that Lujan presented evidence to establish a prima facie case, the Department articulated legitimate business reasons for the termination, and Lujan was provided the opportunity to rebut the Department’s evidence. Thus, the format of the trial complied with the criteria established in McDonnell Douglas. In finding for the Department, the trial court did not indicate whether Lujan had failed to establish a prima facie case" }, { "docid": "16684610", "title": "", "text": "the weight of the evidence, contending the evidence supports a finding that the valid business reason offered by the company to rebut the prima facie case of discrimination was a pretext for racial discrimination. A master’s findings may not be disturbed unless clearly erroneous. Fed.R. Civ.P. 53. In applying this standard, the test is whether we are left “with the definite and firm conviction that a mistake has been committed.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948); Reyes v. Hoffman, 580 F.2d 393 (10th Cir. 1978). Under the three-part analysis of a claim of employment discrimination set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Furnco Const. Co. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1977), Ray must first establish a prima facie case of employment discrimination. We believe he did this by showing (1) that he belongs to a racial minority; (2) that he was qualified for his job; (3) that, despite his qualifications, he was discharged; and (4) that after his discharge the job remained available. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. Once a prima facie case of discrimination has been established, the burden shifts to the employer to prove that the employment decision was based on a legitimate consideration, and not an illegitimate one such as race. The employer need only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id.; Furnco, supra, 438 U.S. at 578, 98 S.Ct. at 2950. Ray asserts that both the switch in job assignments and the discharge which resulted from his refusal to make the change were discriminatory. Safeway states that the assignment change was made to resolve a personality conflict which was affecting production efficiency, and that Ray was terminated for insubordination. In this connection, it is undisputed that Ray refused to comply with a direct order to" }, { "docid": "22956551", "title": "", "text": "A. The promotion claim One of Nulf’s claims is that she was discriminatorily denied promotion to the position of office manager. The elements of a prima facie case set forth in McDonnell Douglas have been applied to promotion cases. See Stastny v. Southern Bell Telephone Co., 628 F.2d 267, 281 (4th Cir. 1980); Fitzgerald v. Sirloin Stockade, 624 F.2d 945, 954 (10th Cir. 1980); Olson v. Philco-Ford, 531 F.2d 474, 477 (10th Cir. 1976). To meet the prima facie test, Nulf had to show that there were promotional opportunities available that were filled by males, that she was qualified for promotion, and that despite her qualifications she was not promoted. This she failed to do. As the trial court found: “Ms. Nulf adduced no evidence as to such matters as when the position became available; whether she applied for it; [and] who received the position.” Rec., vol. I, at 210. Nulf, in fact, testified that what she wanted was her old job and the duties she had performed for ten years. Clearly, the trial court was justified in concluding that Nulf had not made a prima facie case of a discriminatory denial of promotion to office manager. Nulf now attempts to raise, for the first time on appeal, allegations and evidence that she was discriminatorily denied promotion to an order desk vacancy. This issue was never presented to the trial court. Matters not appearing in the record will not be considered by the court of appeals. Shah v. Halliburton Co., 627 F.2d 1055, 1057 n.2 (10th Cir. 1980); Neu v. Grant, 548 F.2d 281, 286-87 (10th Cir. 1977). B. The discharge claim The three-step analysis of discrimination claims established in McDonnell Douglas has repeatedly been applied to discriminatory discharge cases. See, e. g., Lujan v. New Mexico Health and Social Services Department, 624 F.2d 968, 970 (10th Cir. 1980); Reeb v. Marshall, 626 F.2d 43, 45 (8th Cir. 1980); Ray v. Safeway Stores, Inc., 614 F.2d 729, 730-31 (10th Cir. 1980). Nulf was required to present a prima facie case of discriminatory discharge and to prove that any legitimate, nondiscriminatory" }, { "docid": "8733476", "title": "", "text": "993, 994, 8 L.Ed.2d 176 (1962). Accordingly, we must reverse the summary judgment in favor of defendant and remand the case for further proceedings in accord with this opinion. . Plaintiff asserted in the court below that she was also basing her claim on harassment and on retaliation for a discrimination complaint she had filed with the EEOC in 1975. II R. 4, 5. We will not address these specific claims because plaintiff failed to urge them on appeal. Some of the evidence which would support those claims is referred to below because of its relevance to the disparate treatment claims of plaintiff. . McDonnell Douglas, 411 U.S. at 802, n. 13, 93 S.Ct. at 1824 n. 13. . See also Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir.1980), where this court held that a prima facie case is established by meeting the first three McDonnell Douglas requirements and demonstrating the job remained available after the discharge. Other courts have developed stricter tests; for example, some courts have held that, in addition to meeting the first three McDonnell Douglas requirements, plaintiff must show that the employer either assigned a non-minority person to her job or retained non-minority employees having comparable or lesser qualifications. Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.1980); Wade v. New York Telephone Co., 500 F.Supp. 1170, 1174 (S.D.N.Y.1980). See also 3 A. Larson & L. Larson, Employment Discrimination § 86.40, at 17-52 and 17-53 (1984). . This case is distinguishable from Clark v. Atchison, Topeka & Santa Fe Railway Co., 731 F.2d 698 (10th Cir.1984). There summary judgment was granted for defendant because plaintiff failed to establish that he was equally or better qualified than those who were promoted; therefore, he failed to make out a prima facie case of discrimination. Here plaintiff has presented some evidence to show that she was at least as qualified as those employees who remained on the job; she has thus met the requirements for establishing a prima facie case. . This alternate theory was not relied on by the district court in its" }, { "docid": "16684613", "title": "", "text": "Ray and his white co-worker were required to switch job duties and neither was satisfied with the arrangement. Nevertheless, Ray’s white co-worker did not refuse to make the change, and there was no evidence that anyone else had ever refused a direct order with regard to job assignments. In addition, Ray admitted at trial that an alternative to termination was discussed. In fact, Safeway offered to reinstate him with two week’s suspension without pay, an offer which he refused. Rec., vol. II, at 44-45. Other relevant factors in a showing of pretext include Safeway’s general policy and practice with respect to minority employment, and Safeway’s treatment of Ray prior to termination. McDonnell Douglas, supra. No evidence was offered by Ray to show that Safeway had a general policy of treating black employees differently than white employees. Ray did offer evidence that the plant superintendent, Grant Smith, made a derogatory remark about Ray’s race. Rec., vol. II, at 162. However, Smith denied making the remark, Rec., vol. II, at 111, and the Master expressed serious concern about the credibility of the witness who testified about the alleged derogatory comment. Rec., vol. I, at 33. Moreover, the evidence shows that Robert Gridley, the plant manager who had ultimate authority for discharging Ray, Rec., vol. II, at 91-92, 129, was favorably impressed with Ray and encouraged him to take advantage of a management training program which Safeway offered its employees. Rec., vol. II, at 128. In addition, when Ray objected to the early starting time of 5:00 a. m. required in connection with the proposed job change, it is uncontested that he was readily accommodated and the time was changed to 6:30 a. m. Upon review of the evidence as a whole, we are not left with a definite and firm conviction the Master was mistaken in concluding that the decision to discharge Ray was based on Ray’s conduct as an individual, and that his race was irrelevant. Accordingly, we affirm. . The prima facie test set forth in Taylor v. Safeway Stores, Inc., 365 F.Supp. 468 (D.Colo. 1973), rev’d in part on" }, { "docid": "17525933", "title": "", "text": "Hospital is more demanding than work in the 1505 Clinic. Morita has never requested a transfer from the 1505 Clinic to the Hospital. X-ray procedures known as “special procedures” are done at the Hospital only. These procedures require more expertise and skill than normal X-ray procedures. An error by the technician in performing these procedures can result in serious injury or death to the patient. Generally, only senior X-ray technicians perform these special procedures. Plaintiff is not presently competent to perform special procedures, nor has he requested training to learn them. On appeal, Morita does not contest the above facts. Rather, he asserts that by failing to promote him from a staff X-ray technician to a senior X-ray technician, the defendant has engaged in unlawful discrimination on the basis of race. Upon examining the record in this case and the applica ble law, we disagree. We therefore affirm the judgment of the district court in granting Permanente’s motion for dismissal. We arrive at this conclusion by relying upon the Supreme Court’s holding in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In that case, the Court held: “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” Id. at 802, 93 S.Ct. at 1824; See Long v. Ford Motor Company, 496 F.2d 500, 505-06 (6th Cir. 1974). See also Sime v. Trustees of California State University and Colleges, 526 F.2d 1112 (9th Cir. 1975). In the instant case, the plaintiff failed to carry his initial burden under 42 U.S.C. § 2000e-5. Although the Supreme Court made it clear in McDonnell Douglas that the specification of the prima facie proof" }, { "docid": "865363", "title": "", "text": "used, the special master found that the facts were sufficient to show a prima facie case in both Hood’s and Cunningham’s cases. A prima facie case under McDonnell Douglas “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Corp. v. Waters, 438 U.S. at 577, 98 S.Ct. at 2949. The findings of the special master, which are supported by the record, clearly make out a prima facie case under the McDonnell Douglas test. The special master then discussed Hercules’ stated reasons for the discharges and examined the plaintiff’s arguments which alleged that the given reasons were a pretext. Although the special master did not use the word “pretext,” he determined that Hercules’ reasons were not sufficient to explain why Hood was not re-employed after August 12, 1975, nor why Cunningham was not entitled to employment after being called back. Although the words “prima facie ” and “pretext” were not used in discussing the two men’s cases, it is apparent that the special master examined all the pertinent facts and adhered to the McDonnell Douglas three-step test in finding racial discrimination. The terms “pri-ma facie ” and “pretext” alone are not magical, the absence of which will deny a plaintiff’s access to a favorable judgment under Title VII. Although the special master’s opinion might have been worded differently, there is no doubt that he followed the procedures laid down in McDonnell Douglas in arriving at the conclusion he did. Hercules also states that the special master’s finding that Hercules learned on September 6,1975, that Hood no longer had an ulcer is clearly erroneous. Since there is evidence that an ulcer will not always appear in an x-ray, the special master might have overstated the situation in declaring that Hood no longer had an ulcer. At another point in the opinion, however, the special master stated the radiologist’s report more accurately by noting that the report “stated that no ulceration was demonstrated at that time.” Additionally, it is undisputed that Hercules was aware" }, { "docid": "8733465", "title": "", "text": "cast as a rigid rule to apply to all factual situations, courts have adapted the formulation to fit cases involving claims of discriminatory discharge. This court has held that a discharged employee establishes a prima facie case by satisfying the-, first three requirements of McDonnell Douglas and by producing evidence that someone was hired in her place after she was fired. Crawford v. Northeastern Oklahoma State University, 713 F.2d 586, 588 (10th Cir.1983). Plaintiff has made no showing that her job remained available after her discharge, as indicated in Ray v. Safeway Stores, Inc. However, she has successfully demonstrated that she satisfies - even the stricter test established by some courts. First, plaintiff belongs to a minority based on national origin; she was born in Germany in 1936, moved to the United States twenty years later, and first obtained her American citizenship in 1959. Second, she made a showing in her deposition and other evidentiary materials that she was qualified for her job; that she was a hard worker capable of handling different duties; and that her supervisors knew of her capabilities and entrusted her with various- jobs in the plant. Third, plaintiff was discharged from employment in January 1977. Finally, plaintiff stated in her deposition that she was doing the work faster than other employees; that she was “used” while other employees “could play around, having fun in there”; and that other employees knew what plaintiff could do and were on her side concerning her discharge. Ill R. 35-36. Other employees called her a “German, Kraut” and harassed her, and the supervisors did nothing to stop that behavior. Ill R. 39-41, 43. We must agree that plaintiff demonstrated a triable prima facie claim of discrimination against the defendant for her discharge. We are persuaded that this case is similar to Byrd v. Roadway Express, Inc., 687 F.2d 85 (5th Cir.1982), where the court held that summary judgment was precluded because the plaintiffs deposition “demonstrated a potential for a prima facie case at trial” of his § 1981 claim involving harassment and threatening conduct. Defendant argued in its memorandum for" }, { "docid": "22956550", "title": "", "text": "from persons of complainant’s qualifications.” Id. at 802, 93 S.Ct. at 1824. McDonnell Douglas involved hiring, and the Court recognized that “the specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n.13, 93 S.Ct. at 1824 n.13. “But McDonnell Douglas did make clear that a Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under the Act.’ ” Furnco Construction Co. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 344, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)). After reviewing the record, we are not left with a definite and firm conviction that the trial court was mistaken in concluding Nulf failed to carry this initial burden regarding her three claims. A. The promotion claim One of Nulf’s claims is that she was discriminatorily denied promotion to the position of office manager. The elements of a prima facie case set forth in McDonnell Douglas have been applied to promotion cases. See Stastny v. Southern Bell Telephone Co., 628 F.2d 267, 281 (4th Cir. 1980); Fitzgerald v. Sirloin Stockade, 624 F.2d 945, 954 (10th Cir. 1980); Olson v. Philco-Ford, 531 F.2d 474, 477 (10th Cir. 1976). To meet the prima facie test, Nulf had to show that there were promotional opportunities available that were filled by males, that she was qualified for promotion, and that despite her qualifications she was not promoted. This she failed to do. As the trial court found: “Ms. Nulf adduced no evidence as to such matters as when the position became available; whether she applied for it; [and] who received the position.” Rec., vol. I, at 210. Nulf, in fact, testified that what she wanted was her old job and the duties she had performed for ten years. Clearly, the trial court" }, { "docid": "16684611", "title": "", "text": "believe he did this by showing (1) that he belongs to a racial minority; (2) that he was qualified for his job; (3) that, despite his qualifications, he was discharged; and (4) that after his discharge the job remained available. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824. Once a prima facie case of discrimination has been established, the burden shifts to the employer to prove that the employment decision was based on a legitimate consideration, and not an illegitimate one such as race. The employer need only “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id.; Furnco, supra, 438 U.S. at 578, 98 S.Ct. at 2950. Ray asserts that both the switch in job assignments and the discharge which resulted from his refusal to make the change were discriminatory. Safeway states that the assignment change was made to resolve a personality conflict which was affecting production efficiency, and that Ray was terminated for insubordination. In this connection, it is undisputed that Ray refused to comply with a direct order to switch jobs, an order that the company was authorized to make. The plant manager testified that he felt it was necessary to deal firmly with insubordination to prevent it from spreading to other plant employees and affecting overall plant operation. Rec., vol. II, at 129-130. This legitimate business purpose is sufficient to rebut the prima facie case presented by Ray. Ray therefore must carry the burden of proving that the legitimate justification offered by Safeway was merely a pretext for discrimination. McDonnell Douglas, supra; Furnco, supra. Relevant to such a showing would be evidence that white employees in substantially similar circumstances were treated differently. McDonnell Douglas, supra. Ray has made no such showing. In his brief, Ray offers only one reason to support his contention that his discharge was a mere pretext for discrimination: that no alternatives for termination were ever discussed, such as requesting that his white co-worker be given the same choice offered to Ray, or suspending Ray without pay. Appellant’s Brief at 8. On the contrary, however, as we previously noted, both" }, { "docid": "16684608", "title": "", "text": "SEYMOUR, Circuit Judge. After satisfying his administrative remedies, Walter Ray, a black person, filed this action against Safeway Stores, Inc., alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The case was tried by stipulation before an United States magistrate sitting as special master pursuant to Rule 53 of the Federal Rules of Civil Procedure. The Master recommended that judgment be entered in favor of Safeway. The trial court approved the Master’s findings and dismissed the action. We affirm. During the time the incidents giving rise to this appeal took place, Ray was employed on the day shift at the Safeway Denver Milk Plant. His work involved boxing milk on the production line with two white employees. Although Ray was considered a good worker, he had a history of unexcused tardiness and had received several letters of reprimand as a result. Ray and one of his two white co-workers developed a personality conflict which affected the efficiency of their operation. Rec., vol. II, at 87. The plant superintendent, Grant Smith, attempted to resolve the conflict by having Ray and the other employee switch duties. It was hoped that this change would give each man a better appreciation of the other person’s work. Rec., vol. II, at 84. Such a switch had previously been used by the superintendent with two other employees. Rec.', vol. II, at 88-90. Neither Ray nor his co-worker wanted to change job duties, but both originally agreed to do so. Rec., vol. II, at 84, 87-88, 140. Because Ray objected to the 5:00 a. m. starting time of his co-worker, it was agreed that Ray could start at 6:30 a. m. instead. On the morning Ray was to begin his new duties, he informed his shift supervisor that he would not change jobs. When he persisted in his refusal, he was terminated for insubordination. Safeway later offered to reinstate Ray conditioned on certain disciplinary action but Ray refused. The Master found that Ray’s discharge was not racially motivated. Ray appeals this finding as contrary to" } ]

[ { "docid": "22742142", "title": "", "text": "F.3d 394, 397, 29 USPQ2d 1767, 1769 (Fed.Cir.1994). If tried to a jury, it is the jury’s factual findings on infringement that are reviewed by this court for lack of substantial evidence, see Genentech, 29 F.3d at 1565, 31 USPQ2d at 1168-69, as part of this court’s reapplication of the standard for judgment as a matter of law. A claim of infringement under the doctrine of equivalents modifies this second step by requiring that the fact finder determine whether differences between particular elements of the accused device and the asserted claims are insubstantial. See Wamer-Jen-kinson Co. v. Hilton Davis Chem. Co., — U.S. -, -, 117 S.Ct. 1040, 1054, 137 L.Ed.2d 146 (1997). However, because they have separate origins, purposes, and applications, determining equivalence under paragraph 112(6) requires an analysis different from that used to determine equivalence under the doctrine of equivalents. See Alpex, 102 F.3d at 1222, 40 USPQ2d at 1673 (“Under § 112, the concern is whether the accused device, which performs the claimed function, has the same or an equivalent structure as the structure described in the specification corresponding to the claim’s means. Under the doctrine of equivalents, on the other hand, the question is whether the accused device is only insubstantially different than the claimed device.”) (internal citations omitted). After the judge construes the means-plus-funetion limitations identifying structures, materials, or acts described in the patent’s specification, and their equivalents as determined by the fact finder (step one, described above), the judge gives the construed claims to the fact finder, in this case a jury, for a determination of infringement. See D.M.I., 755 F.2d at 1575, 225 USPQ at 239. For literal infringement, the fact finder must determine whether the accused device performs an identical function to the one recited in the means-plus-function clause. See Pennwalt Corp. v. Durand-Wayland, Inc., 833 F.2d 931, 934, 4 USPQ2d 1737, 1739 (Fed.Cir, 1987) (if the identical function is not performed, literal infringement is not possible). If the identical function is performed, the fact finder must then determine whether the accused device utilizes the same structure or materials as described in" } ]

[ { "docid": "18418960", "title": "", "text": "a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a) (2002). A court should employ a two-step analysis in making an infringement determination. See Mark-man v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998) (en banc).' The trier of fact must then compare the properly construed claims with the accused infringing product. See id. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Literal infringement occurs when each limitation of at least one claim of the patent is found exactly in the alleged infringer’s product. See Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987). The patent owner has the burden of prov ing literal infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). b. Evidence Before the Jury The invention at bar is a method for processing loan applications. Defendant asserts that its accused system, the Lending-Tree Exchange, cannot literally infringe the asserted claims of the ’947 patent because defendant does not process “loan applications” as required by the claims. (D.I. 269 at 9-23) The court construed the term “loan application” as used in the claims of the ’947 patent to mean “a request for an extension of credit in a format that contains sufficiently detailed information to enable a lender to grant or deny the request.” (D.I. 224 at 3) The crux of defendant’s argument is that there was no evidence presented by plaintiff at trial that the information collected in defendant’s Qualification Form (“QF”), without more, is sufficient for a lender to grant" }, { "docid": "15822669", "title": "", "text": "must be read in view of the specification and prosecution history. Indeed, the specification is often “the single best guide to the meaning of a disputed term.” Phillips, 415 F.3d at 1315. B. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed.Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co." }, { "docid": "20882270", "title": "", "text": "to prove by clear and convincing evidence any facts on which to base a conclusion that the subject matter as a whole would have been obvious to a person having ordinary skill in the art at the time the invention was made. V. Infringement Ven-Tel further argues that Hayes presented insufficient evidence for the jury to find infringement. Specifically, Ven-Tel states that Hayes’ case for infringement was based solely on the testimony of Hayes’ expert, Dr. Charles Cliett, who it says failed to properly construe the claims and had no knowledge of the structure of the Ven-Tel product. Moreover, Ven-Tel argues, Hayes failed to meet its burden of proof to establish, under 35 U.S.C. § 112, sixth paragraph, that the structures in the accused device which perform the recited functions are the same as or equivalent to the structures disclosed in the specification for performing those same functions. Literal infringement may be found when an accused device falls within the asserted claims as properly construed. Palumbo v. Don-Joy Co., 762 F.2d 969, 974, 226 USPQ 5, 7 (Fed.Cir.1985) (citation omitted). The patentee has the burden of proving infringement by a preponderance of the evidence. SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889, 8 USPQ2d 1468, 1477 (Fed.Cir.1988). The determination of literal infringement is a question of fact, Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1269-70, 229 USPQ 805, 811 (Fed.Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 875, 93 L.Ed.2d 829 (1987), as is the determination of equivalent structure under 35 U.S.C. § 112, paragraph 6, D.M.I., 755 F.2d at 1575, 225 USPQ at 239. “The first step in determining infringement is to construe the claims.” Fonar Corp. v. Johnson & Johnson, 821 F.2d 627, 631, 3 USPQ2d 1109, 1112 (Fed.Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 751, 98 L.Ed.2d 764 (1988). The second step is to decide whether each limitation in the properly construed claims is found in the accused device. Id. Although claim interpretation is a question of law, the jury’s ultimate finding on infringement is an issue of fact. See H.H." }, { "docid": "9788724", "title": "", "text": "the Doctrine of Equivalents For there to be infringement under the doctrine of equivalents, the accused product or process must embody every limitation of a claim, either literally or by an equivalent. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 41, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). An element is equivalent if the differences between the element and the claim limitation are “insubstantial.” Zelinski v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed.Cir.1999). One test used to determine “insubstantiality” is whether the element performs substantially the same function in substantially the same way to obtain substantially the same result as the claim limitation. Graver Tank, 339 U.S. at 608, 70 S.Ct. 854. This test is commonly referred to as the “function-way-result” test. The mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under the doctrine of equivalents. The patent owner has the burden of proving infringement under the doctrine of equivalents and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). Philips argues that the groove employed on its razors does not satisfy the function-way-result test. Philips contends that the groove does not prevent facial debris from adhering to the cutting edge surface, contrary to the function of the recess recited in the ’749 patent. {See D.I. 182, Horen-berg Declaration at ¶ 19; Cameron Declaration ¶ 15) Philips also argues that, even if there were such an unintentional reduction in debris adherence, this reduction would not be accomplished in substantially the same way as described in the ’749 patent. To this end, Philips avers that the electric rotary razor claimed in the ’749 patent reduces friction by creating a sharp trailing edge on the cutting surface whereas its 116 accused infringing razors reduce friction through a “LifNand-Cut” mechanism. {See id., Horenberg Declaration at ¶ 18, Cameron Declaration at ¶ 25) The court finds that genuine issues of material fact exist as to whether the 116 accused infringing electric rotary razors perform substantially the" }, { "docid": "15822672", "title": "", "text": "is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). For there to be infringement under the doctrine of equivalents, the accused product or process must embody every limitation of a claim, either literally or by an equivalent. Warner-Jenkinson, 520 U.S. at 41, 117 S.Ct. 1040. An element is equivalent if the differences between the element and the claim limitation are “insubstantial.” Zelinski v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed.Cir.1999). One test used to determine “insubstantiality” is whether the element performs substantially the same function in substantially the same way to obtain substantially the same result as the claim limitation. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). This test is commonly referred to as the “function-way-result” test. The mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under the doctrine of equivalents. The patent owner has the burden of proving infringement under the doctrine of equivalents and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). The doctrine of equivalents is limited by the doctrine of prosecution history estoppel. In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 122 S.Ct. 1831, 152 L.Ed.2d 944 (2002) (“Festo VII”), the Supreme Court stated: Prosecution history estoppel ensures that the doctrine of equivalents remains tied to its underlying purpose. Where the original application once embraced the purported equivalent but the paten-tee narrowed his claims to obtain the patent or to protect its validity, the pat-entee cannot assert that he lacked the words to describe the subject matter in question. The doctrine of equivalents is premised on language’s inability to capture the essence of innovation, but a prior application describing the precise element at issue undercuts that premise. In that instance the prosecution history has established that" }, { "docid": "1475964", "title": "", "text": "” Amgen Inc. v. F. Hoffman-La Roche Ltd, 580 F.3d 1340, 1362 (Fed. Cir. 2009). C. Infringement A patent is infringed when a person “without authority makes, uses, offers to sell, or sells any patented invention, within the United States .., during the term of the patent .... ” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. The trier of fact must then compare the properly construed claims with the accused infringing product. See id. This second step is a question of fact. Bai v. L & L Wings, Inc., 160 E3d 1350, 1353 (Fed. Cir. 1998). “Literal infringement of a claim exists when every limitation recited in the claim is found in the accused device.” Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477 (Fed. Cir. 1998). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir. 2000). The patent owner has the burden of proving infringement by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed. Cir. 1988). 35 U.S.C. § 271(b) provides that “[w]hoever actively induces infringement of a patent shall be liable as an infringer.” 35 U.S.C. § 271(b). “In order to prevail on an inducement claim, the paten-tee must establish first that there has been direct infringement, and second that the alleged infringer knowingly induced infringement and possessed specific intent to encourage another’s infringement.” ACCO Brands, Inc. v. ABA Locks Mfrs. Co., 501 F.3d 1307, 1312 (Fed. Cir. 2007) (internal quotation marks omitted). In other words, “inducement requires evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the inducer had knowledge of the direct infringer’s activities.” DSU Med. Corp. v. JMS Co.," }, { "docid": "15822671", "title": "", "text": "v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir.2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). For there to be infringement under the doctrine of equivalents, the accused product or process must embody every limitation of a claim, either literally or by an equivalent. Warner-Jenkinson, 520 U.S. at 41, 117 S.Ct. 1040. An element is equivalent if the differences between the element and the claim limitation are “insubstantial.” Zelinski v. Brunswick Corp., 185 F.3d 1311, 1316 (Fed.Cir.1999). One test used to determine “insubstantiality” is whether the element performs substantially the same function in substantially the same way to obtain substantially the same result as the claim limitation. See Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). This test is commonly referred to as the “function-way-result” test. The mere showing that an accused device is equivalent overall to the claimed invention is insufficient to establish infringement under" }, { "docid": "21073369", "title": "", "text": "patent offices. The determination of whether an accused product or process infringes a claim in a patent is universally understood to involve two steps. First, we construe the claim asserted to be infringed to determine its meaning and scope. Second, we compare the properly construed claim to the accused product or process. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, — U.S. -, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In addressing these two steps, the burden is on the patent owner to establish infringement by a preponderance of the evidence. SmithKline Diagnostics Inc. v. Helena Lab. Corp., 859 F.2d 878, 889, 8 USPQ2d 1468, 1477 (Fed.Cir.1988). The patent owner must show that every limitation of the patent claim asserted is found in the accused process or product, either literally or under the doctrine of equivalents. Id. Whether a product or process infringes the properly construed claims of a patent, literally or under the doctrine of equivalents, is a question of fact. Hilton Davis Chem. Co. v. Warner-Jenkinson Co., 62 F.3d 1512, 1520, 35 USPQ2d 1641, 1647 (Fed.Cir.1995) (in banc), rev’d on other grounds, — U.S. -, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). We review factual determinations of the Commission under the “substantial evidence” standard. 19 U.S.C. § 1337(c) (1994); 5 U.S.C. § 706 (1994). The proper construction of a claim, on the other hand, is solely a matter of law, over which on appeal we exercise complete and independent review. Markman, 52 F.3d at 979, 34 USPQ2d at 1329. To determine the meaning and scope of a claim, we examine the claim language, the specification, and the prosecution history. Extrinsic evidence, that is, evidence outside the record before the PTO, such as expert testimony about how those skilled in the art would interpret certain language in the claim, may also be considered when appropriate as an inherent part of the process of claim construction and as an aid in arriving at the proper construction of the claim. Id. To determine whether solvents other than those recited in claim 1" }, { "docid": "20165994", "title": "", "text": "from arguing that [REDACTED] Defendants argue that there is no authority to support the imposition of such drastic sanctions under circumstances such as this. B. Whether the Court Should Enter Summary Judgment of Infringement The only remaining question before the Court with respect to infringement is whether [REDACTED] as required under the Court’s claim construction. Based on the admissible evidence in the record, the Court concludes that this limitation is met as a matter of law and therefore, that the accused products infringe the asserted claims at issue. A determination of infringement is a two-step process. Wright Med. Tech., Inc. v. Osteonics Corp., 122 F.3d 1440, 1443 (Fed.Cir.1997). The first step is claim construction, which is a question of law to be determined by the court. Id. The second step is an analysis of infringement, in which it must be determined whether a particular device infringes a properly construed claim. Id. A device literally infringes if each of the elements of the asserted claims is found in the accused device. Id. In the alternative, a device may infringe under the doctrine of equivalents “if every limitation of the asserted claim, or its ‘equivalent,’ is found in the accused subject matter, where an ‘equivalent’ differs from the claimed limitation only insubstantially.” Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 149 F.3d 1309, 1315 (Fed.Cir.1998). As infringement is a question of fact, the issue on summary judgment is whether there is any genuine issue of material fact regarding infringement. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). The Court has construed the claim term “metalized pad” as follows: Pads that include an under-bump metalization layer (UBM) that forms an interface between the top metal layer of the integrated circuit and the solder balls (bumps) that are often used in flip-chip type integrated circuits. Pads in an in tegrated circuit are openings in the top passivation layer that allow connection to the top metal layer, to enable formation of connections between the integrated circuit and external circuit element. The Court rejects Defendants’ assertion that it must revisit its construction" }, { "docid": "14245360", "title": "", "text": "91 L.Ed.2d 265 (1986). IV. DISCUSSION A. Infringement BSC moves for summary judgment that the Promus stent does not infringe any asserted claim of the '7286, '3286, or '473 patents. J & J moves for summary judg ment that the Promus stent infringes claim 9 of the '3286 patent. 1. Standard A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir. 1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed. Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. Smith-Kline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). 2. Analysis In order to prevail on its motion for summary judgment of non-infringement, the court must adopt each of BSC’s proffered claim definitions. The court has declined to do so, necessitating the denial of BSC’s motion. The" }, { "docid": "20550987", "title": "", "text": "district court’s finding that claims 5-9 of the '829 patent would not be infringed by Sandoz’s ANDA product. The key language at issue in claim 5, and by extension in dependent claims 6-9, is “said composition being of a quantity at least sufficient to provide multiple doses of said mixture of (6S) and (6R) diastereoisomers in an amount of 2000 mg per dose.” '829 patent col. 10 11. 10-24 (emphasis added). Based on its claim construction, the district court found that San-doz’s ANDA product, in vials of 175 mg or 250 mg of levoleucovorin, would not meet the limitation of at least two doses of 2000 mg each. The court also found that the patent applicant had explicitly disclaimed smaller dosage amounts during prosecution. The district court therefore decided that no genuine issue of material fact on the infringement question had been raised, finding that Spectrum had not shown literal infringement and was estopped from applying the doctrine of equivalents. Under the framework of the Hatch-Waxman Act, the infringement inquiry focuses on a comparison of the asserted patent claims against the ANDA product that is likely to be sold following FDA approval. Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1365-66 (Fed.Cir.2003) (citing Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1567-68 (Fed.Cir.1997)). The burden of proving infringement by a preponderance of the evidence remains on the patentee. Id. Evalu ating the grant of summary judgment of noninfringement requires two steps: (1) claim construction, where contested, and (2) comparison of the properly construed claims to the accused product. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir.2009). The second step of the analysis is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). As such, it is amenable to summary judgment where no reasonable fact-finder could find that the accused product contains every claim limitation or its equivalent. Id.; see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Even without literal infringement, a patentee may establish infringement under the" }, { "docid": "15822670", "title": "", "text": "to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed.Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir.2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial.”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there" }, { "docid": "23208784", "title": "", "text": "United States, 243 F.3d 1359, 1362 (Fed.Cir. Mar.23, 2001). A determination of 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, 27 USPQ2d 1836, 1839 (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.” Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199, 32 USPQ2d 1338, 1341 (Fed.Cir.1994). Claim construction is an issue of law that we review de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1322 (Fed.Cir. 1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). The 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). An infringement issue is properly decided upon summary judgment when no reasonable jury could find that every limitation recited in the properly construed claim either is or is not found in the accused device either literally or under the doctrine of equivalents. Id. Like the determination of infringement, compliance with the marking statute, 35 U.S.C. § 287(a), is a question of fact, Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1111, 39 USPQ2d 1001, 1010 (Fed. Cir.1996). Thus, this issue is properly decided upon summary judgment when no reasonable jury could find that the patentee either has or has not provided actual notice to the “ ‘particular defendants by informing them of his patent and of their infringement of it.’ ” Amsted Indus. Inc., v. Buckeye Steel Castings Co., 24 F.3d 178, 187, 30 USPQ2d 1462, 1469 (Fed.Cir.1994) (quoting Dunlap v. Schofield, 152 U.S. 244, 247-48, 14 S.Ct. 576, 38 L.Ed. 426 (1894)). II. Analysis A." }, { "docid": "20677575", "title": "", "text": "requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed. Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment- of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial,”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most" }, { "docid": "9788721", "title": "", "text": "Motion for Summary Judgment of Literal Infringement and Philips’s Cross-Motion for Summary Judgment of Nonin-fringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A court should employ a two-step analysis in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with .the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). Literal infringement occurs where each limitation of at least one claim of the patent is found exactly in the alleged infringer’s product. Panduit Corp. v. Dennison Mfg. Co., 836 F.2d 1329, 1330 n. 1 (Fed.Cir.1987). The patent owner lias the burden of proving infringement and must meet its burden by a preponderance of the evidence. Smith-Kline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). Izumi argues that the accused infringing electric rotary razors meet every limitation recited in claims 1, 2, and 3 of the ’749 patent under its proposed claim construction. Izumi, therefore, contends that there are no genuine issues of material fact regarding literal infringement and that summary judgment should be granted in its favor. In rebuttal, Philips asserts that its electric rotary razors do not contain the “recess beneath/recess below” limitation of the asserted claims. Philips claims that the groove on its electric rotary razors is formed instead at the cutting edge surface and is orientated vertically with respect to the cutting edge surface. As a result, Philips maintains that its electric rotary razors do not infringe the ’749 patent. Based upon the court’s claim construction of the phrases “a recess comprising" }, { "docid": "5829411", "title": "", "text": "Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. Id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform or use each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual element of the claimed invention and an element of the accused product are insubstantial. Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (U.S.1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). In support of its motion for summary judgment of infringement, BSC contends that collateral estoppel bars Cordis from arguing that its 2.25 mm Cypher stent does not infringe claim 36 of" }, { "docid": "21073368", "title": "", "text": "optimize critical process variables. The Commission concluded that: In view of Tanabe’s decision to use restrictive language in the claims of the ’035 patent, specifying only acetone and no other keytone [sic, ketone] solvent, and given the admissions made to the PTO about the specificity of the claimed invention, and the further admissions Tanabe made to the EPO and other foreign patent offices, it has not been shown that Fermion’s use of MEK is equivalent to the acetone covered by claim 1 of the ’035 patent. Therefore, it has not been demonstrated that the accused Fermion process infringes claim 1 of the ’035 patent. DISCUSSION On appeal, Tanabe asserts that the Commission erred in its construction of claim 1 and in its consequent determination that Fermion’s process did not infringe under the doctrine of equivalents. Tanabe further asserts that the Commission erroneously invoked an estoppel against Tanabe regarding the proper range of equivalents based upon the purported subjective intent of the inventors, limitations not a part of claim 1, and irrelevant statements made to foreign patent offices. The determination of whether an accused product or process infringes a claim in a patent is universally understood to involve two steps. First, we construe the claim asserted to be infringed to determine its meaning and scope. Second, we compare the properly construed claim to the accused product or process. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, — U.S. -, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). In addressing these two steps, the burden is on the patent owner to establish infringement by a preponderance of the evidence. SmithKline Diagnostics Inc. v. Helena Lab. Corp., 859 F.2d 878, 889, 8 USPQ2d 1468, 1477 (Fed.Cir.1988). The patent owner must show that every limitation of the patent claim asserted is found in the accused process or product, either literally or under the doctrine of equivalents. Id. Whether a product or process infringes the properly construed claims of a patent, literally or under the doctrine of equivalents, is a question of fact. Hilton Davis Chem. Co." }, { "docid": "20677576", "title": "", "text": "insubstantial. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 24, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The patent owner has the burden of proving infringement and must meet its burden by a preponderance of the evidence. See SmithKline Diagnostics, Inc. v. Helena Lab. Corp., 859 F.2d 878, 889 (Fed.Cir.1988) (citations omitted). When an accused infringer moves for summary judgment of non-infringement, such relief may be granted only if one or more limitations of the claim in question does not read on an element of the accused product, either literally or under the doctrine of equivalents. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1376 (Fed.Cir. 2005); see also TechSearch, L.L.C. v. Intel Corp., 286 F.3d 1360, 1369 (Fed.Cir.2002) (“Summary judgment- of noninfringement is ... appropriate where the patent owner’s proof is deficient in meeting an essential part of the legal standard for infringement, because such failure will render all other facts immaterial,”). Thus, summary judgment of non-infringement can only be granted if, after viewing the facts in the light most favorable to the non-movant, there is no genuine issue as to whether the accused product is covered by the claims (as construed by the court). See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1304 (Fed.Cir.1999). “[A] method claim is not directly infringed by the sale of an apparatus even though it is capable of performing only the patented method. The sale of the apparatus is not a sale of the method. A method claim is directly infringed only by one practicing the patented method.” Joy Technologies, Inc. v. Flakt, Inc., 6 F.3d 770, 775 (Fed.Cir.1993). Therefore, “an accused infringer must perform all the steps of the claimed method, either personally or through another acting under his direction or control.” Akamai Technologies, Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1307 (Fed.Cir.2012). With respect to apparatus claims, “to infringe a claim that recites capability and not actual operation, an accused device ‘need only be capable of operating in the described mode.’ ” Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1204 (Fed.Cir.2010) (citing" }, { "docid": "20677574", "title": "", "text": "a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial”). B. Infringement A patent is infringed when a person “without authority makes, uses or sells any patented invention, within the United States ... during the term of the patent.” 35 U.S.C. § 271(a). A two-step analysis is employed in making an infringement determination. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.1995). First, the court must construe the asserted claims to ascertain their meaning and scope. See id. Construction of the claims is a question of law subject to de novo review. See Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1454 (Fed.Cir.1998). The trier of fact must then compare the properly construed claims with the accused infringing product. See Markman, 52 F.3d at 976. This second step is a question of fact. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). “Direct infringement requires a party to perform each and every step or element of a claimed method or product.” BMC Res., Inc. v. Paymentech, LP., 498 F.3d 1373, 1378 (Fed.Cir.2007), overruled on other grounds by 692 F.3d 1301 (Fed. Cir.2012). “If any claim limitation is absent from the accused device, there is no literal infringement as a matter of law.” Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000). If an accused product does not infringe an independent claim, it also does not infringe any claim depending thereon. See Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989). However, “[o]ne may infringe an independent claim and not infringe a claim dependent on that claim.” Monsanto Co. v. Syngenta Seeds, Inc., 503 F.3d 1352, 1359 (Fed.Cir.2007) (quoting Wahpeton Canvas, 870 F.2d at 1552) (internal quotations omitted). A product that does not literally infringe a patent claim may still infringe under the doctrine of equivalents if the differences between an individual limitation of the claimed invention and an element of the accused product are" }, { "docid": "20550988", "title": "", "text": "the asserted patent claims against the ANDA product that is likely to be sold following FDA approval. Warner-Lambert Co. v. Apotex Corp., 316 F.3d 1348, 1365-66 (Fed.Cir.2003) (citing Glaxo, Inc. v. Novopharm, Ltd., 110 F.3d 1562, 1567-68 (Fed.Cir.1997)). The burden of proving infringement by a preponderance of the evidence remains on the patentee. Id. Evalu ating the grant of summary judgment of noninfringement requires two steps: (1) claim construction, where contested, and (2) comparison of the properly construed claims to the accused product. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir.2009). The second step of the analysis is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998). As such, it is amenable to summary judgment where no reasonable fact-finder could find that the accused product contains every claim limitation or its equivalent. Id.; see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 39 n. 8, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Even without literal infringement, a patentee may establish infringement under the doctrine of equivalents if an element of the accused product “performs substantially the same function in substantially the same way to obtain the same result as the claim limitation.” Pozen Inc. v. Par Pharm., Inc., 696 F.3d 1151, 1167 (Fed.Cir.2012) (citation omitted). Whether prosecution history estoppel applies, and thus whether the doctrine of equivalents is available for a particular claim limitation, is a question of law reviewed de novo. Intervet Inc. v. Merial Ltd., 617 F.3d 1282, 1290-91 (Fed.Cir.2010). That situation arises when an applicant during prosecution either makes an argument evincing a “clear and unmistakable surrender” of subject matter, Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 (Fed.Cir.1999), or narrows a claim “to avoid the prior art, or otherwise to address a specific concern ... that arguably would have rendered the claimed subject matter unpatentable,” Warner-Jenkinson, 520 U.S. at 30-31, 117 S.Ct. 1040. The applicant is then estopped from later invoking the doctrine of equivalents to recapture the surrendered subject matter. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S." } ]

[ { "docid": "1230067", "title": "", "text": "of the alleged illegal search and seizure; (2) admission into evidence of certain inculpatory admissions without proper Fifth and Sixth Amendments advisements, obtained in violation of Rule 5(a) of the Federal Rules of Criminal Procedure; (3) refusal of the Court to admit into evidence an exculpatory statement by Sanchez exonerating McCormick; (4) lack of proper and sufficient voir dire examination; (5) failure in instructing and failure to give certain instructions; and (6) failure to hold 21 U.S.C. § 844 unconstitutional. I. McCormick argues that Agent Goad, who had detected no odor of narcotics and who was searching only for aliens, had no cause to search further for aliens when he grasped the cigar-shaped object from the black plastic cov er. However, nothing in this record supports this argument. Agent Goad, who had been employed with the service for some seven months, had smelled marijuana on only one prior occasion. Goad grasped the plastic cover to determine “what was under near th it”. He did not grasp any other portion of the cover after detecting the brick-like object. He testified that he had felt only the top surface and that he was attempting to remove the cover. After Goad informed Ford of the object he felt under the cover, Agent Ford entered the van and proceeded with the search. It is obvious that Goad, who did not identify the brick object as marijuana, would nonetheless have proceeded to remove the plastic cover in his search for illegal aliens if Agent Ford had not taken over the search at that point. Title 8 U.S.C. § 1357(a)(3) empowers agents of the Border Patrol to search any vehicle, without warrant, for aliens “within a reasonable distance from any external boundary of the United States”. Goad and Ford, as authorized U. S. Customs agents, were empowered to be alert for violations of 21 U.S.C. § 960(a) relating to importation of narcotic drugs into the United States. We have held that 100 air miles from any external boundary of the United States meets the term “reasonable distance” as used in 8 U.S.C. § 1357(a)(3). Roa-Rodriguez v." } ]

[ { "docid": "6583731", "title": "", "text": "PER CURIAM: Carol Elaine Gordon was found guilty of conspiracy to possess marijuana with intent to distribute and possession of marijuana in violation of 21 U.S.C. § 841(a)(1) and 846. She challenges her conviction on the ground that the trial court erred when it failed to suppress as evidence the one thousand pounds of marijuana which was found as the result of a warrantless stop and search of a motor home in which she was a passenger. Finding that the trial court’s ruling on the motion to suppress was correct, we affirm. I. On January 21, 1983, United States Customs Patrol Officers James Straba and Mario Muniz were returning to their headquarters in Big Bend National Park, Texas, when they observed a motor home stuck in the mud alongside Highway 118, approximately fifty miles from the Texas-Mexico border. The officers, who were in an unmarked patrol vehicle, approached the motor home and offered assistance to its occupants, a Latin male with one eye that rolled up in his head, and a bearded Caucasian male. After the vehicle was freed from the mud, the men drove it south on Highway 118. Because the officers thought it unusual for two men to be traveling in a motor home in that area, they noted the license plate number of the vehicle. Upon returning to their headquarters, the officers related details of the encounter to their supervisor who immediately recognized the description of the Latin male as that of Jose Lozano, a member of the Alfred Lozano marijuana smuggling group. A computer check of the vehicle’s license number revealed that the motor home was registered to the same address as a vehicle seized in a 1,300-pound marijuana case in June 1982. The headquarter’s files indicated that the standard operating procedure of the group was to bring marijuana from the border area by mule train, transfer it to motor homes, “[a]nd then in daylight hours ... move out as if they were tourists with the rest of the motor homes.” Based upon this information, the officers decided to establish surveillance the next morning on each" }, { "docid": "1667145", "title": "", "text": "TUTTLE, Circuit Judge: Sharon Maria Newell and Maria del Socorro Franco Guerra appeal their convictions for one count each of knowingly and intentionally possessing, with intent to distribute, marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). They contend that the search during which the marijuana was discovered violated their rights under the Fourth Amendment of the United States Constitution. We agree and therefore reverse their convictions. I. “As is usual in the search and seizure area, the particular factual setting is of critical importance to the disposition of this case.” United States v. Bursey, 491 F.2d 531, 532 (5th Cir. 1974). The facts of this case are simple and undisputed. The appellants were driving a late-model passenger automobile bearing Starr County, Texas, license plates north on Texas Highway 16 in the early evening of March 3, 1973. Agent Jose E. Garza of the United States Border Patrol, who was driving south on Highway 16 at the same time, noticed the appellants’ car a few miles south of Hebronville, Texas, and made a u-turn to pursue it. The Agent lost sight of the appellants’ vehicle in the heavy Saturday evening traffic, but re-sighted it approximately one-half hour later, at 8:30 p. m., at a point four miles north of Hebronville on Highway 16. Agent Garza stopped the appellants’ vehicle at this point, which is approximately 56 miles north of the Mexican border, to make a “routine immigration check” for illegal aliens. After ascertaining Ms. Newell’s American citizenship, he asked Ms. Newell to open the trunk of the car, which she did. He saw in the trunk a leather suitcase, a metal footlocker and two overnight bags. He felt the footlocker, which, he testified “seemed a little heavier than usual.” He asked Ms. Newell to open the footlocker, but she replied that she did not have the necessary key. He then “cracked” open the footlocker by using tools and detected a “strong odor of marijuana.” Further search produced sixty-three pounds of semi-refined marijuana in brick form. Prior to trial, the defendants moved to suppress the evidence of" }, { "docid": "2323242", "title": "", "text": "FAY, Circuit Judge: Appellant, Gustavo Berru Saenz, was tried before the District Court for the Western District of Texas and convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1970). On appeal, Saenz argues that the roving United States Border Patrol stopped his automobile near Big Bend National Park without reasonable suspicion. Appellant further contends that the marijuana seized during a search immediately following the stop was improperly admitted into evidence because the search was not based on probable cause and was without consent. Based on this Court’s decision in United States v. Villarreal, 565 F.2d 932 (5th Cir. 1978), we affirm the judgment of the district court. I. THE FACTS On April 17, 1977, United States Border Patrol Officers Donnie R. Newberry and Leslie Whittington received a report at 6:15 a. m. from the radio operator at Marfa, Texas Control Center, that the Center had received a sequential pattern of signals which indicated that two vehicles were traveling north toward Alpine, Texas, on Highway 118 in close proximity to each other. Highway 118 runs north-south from Big Bend National Park, which is on the United States-Mexico border, and connects with Interstate 10 several hundred miles away. The 75 mile stretch of Highway 118 from Study Butte, Texas, which is 15 miles from the Mexican border, to Alpine, does not connect with any main roads. Most of the interconnecting roads are ranch roads which are locked at night. Appellant’s 1973 Pontiac Grand Prix and the first vehicle a red and white Ford, tripped the first set of sensors one mile north of Study Butte on Highway 118. The vehicles tripped the second set of sensors at a point approximately 40 miles south of Alpine. These were the only two vehicles tripping the sensors from the time of the initial signal at 4:41 a. m. until the time Officers Newberry and Whittington received the report from Marfa. The vehicles in appellant’s case had been traveling in tandem fashion for approximately 70 miles. Officer Newberry, who had been stationed in the Alpine area for about" }, { "docid": "22080371", "title": "", "text": "PER CURIAM: Michael Brett Jacquinot appeals his conditional guilty plea conviction and sentence for possession with intent to distribute marijuana. He argues that the district court erred by: (1) denying his motion to suppress the evidence obtained from a roving border patrol stop of the truck in which he was a passenger and (2) applying U.S.S.G. § 2Dl.l(b)(l) to increase his base offense level for possession of a firearm. We affirm. I. FACTS Michael Brett Jacquinot was indicted for possession with the intent to distribute between 100 and 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). Jacquinot moved to suppress the evidence obtained as the result of the stop of a vehicle in which he was riding, asserting that the border patrol agents did not have reasonable suspicion to stop the vehicle. An evidentiary hearing was held on Jac-quinot’s motion. Border Patrol Agent Andrew P. Graham, a three-year veteran of the Border Patrol, testified that he and eleven-year veteran Border Patrol Agent Jay Snodgrass were stationed in Alpine, Texas, and were assigned to patrol a 140-mile area of the United States/Mexican border, including the Big Bend National Park. While Graham’s patrol experience was all in the Alpine, Texas, area, Snod-grass had transferred to Alpine a few months earlier, having previously served at the Marfa Sector Area Operations Center and the Laredo, Texas, border area. During his tenure with the Border Patrol, Graham had been involved with at least 30 narcotics cases and 15 to 20 alien smuggling cases. Texas Highway 385 is notorious for smuggling, and in the prior six months, Agent Graham had noticed an increase in alien and smuggling apprehensions on that highway. Agent Graham attributed this increase in activity on Highway 385 to the Border Patrol’s enhanced enforcement on other nearby highways. In the early morning hours of Sunday, January 16, 2000, Agents Graham and Snodgrass were parked on Highway 385, approximately 75 miles north of the United States/Mexican border. At 5:45 a.m., the agents were notified by Marfa Sector Communications that vehicle sensors located inside Big Bend National Park and well within 50" }, { "docid": "11469101", "title": "", "text": "PER CURIAM: Harrel Lloyd Robinson, Jr., was convicted of possession, with intent to distribute of approximately 235 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1). The contraband was discovered in the trunk of Robinson’s vehicle following a search by an officer of the United States Border Patrol at the Border Patrol checkpoint located 7.8 miles northwest of LaGloria, Texas, on Highway 1017. This search was occasioned when, as the patrolman approached the vehicle to conduct a routine citizenship check, he detected a strong odor of marijuana emanating from it. Robinson contends that the officer lacked probable cause to institute the search, and that, therefore, the district court erred in denying his motion to suppress the contraband from admission into evidence at trial. The argument is foreclosed by the recent decision in United States v. Alvarez-Gonzalez, 561 F.2d 620 (5th Cir. . 1977), which held the LaGloria checkpoint is the functional equivalent of the border and that neither a warrant nor probable cause is required for routine searches conducted there of automobile trunks and other large spaces in which aliens may be concealed. See Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). But even were this not so, the La-Gloria checkpoint is a permanent one at which brief, routine stops for immigration checks are permitted. United States v. Santibanez, 517 F.2d 922 (5th Cir. 1975). The odor of marijuana perceived by the officer during this stop furnished probable cause for further investigation. Accordingly, the conviction is AFFIRMED." }, { "docid": "14239676", "title": "", "text": "PER CURIAM: Joe Jarrell Faulkner appeals from his conviction for possession of 450 pounds of marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). We affirm. Appellant challenges the constitutionality of the search which disclosed the contraband and further contends the district court’s charge to the jury was improper. The testimony at trial established the following. At approximately 5:00 p. m. on February 8, 1975, defendant approached a border checkpoint seven miles south of Falfurrias, Texas, on United States Highway 281. He was driving a pickup truck with an attached camper. Defendant slowed down, waved, and then continued driving. Such behavior was known to John Douglas Edwards, the Border Patrol agent on duty, as a technique utilized by individuals transporting illegal aliens. Edwards ordered defendant to stop. As Edwards approached defendant’s vehicle, he noticed an incongruity in its structure in that the inside ceiling of the camper was approximately one foot lower than the outside ceiling. Edwards was also aware that similarly constructed campers had, in the past, been used to carry contraband. As Edwards began to question defendant as to his citizenship, he noted defendant was considerably nervous and agitated. As a second Border Patrol Agent, Royce William Haygood, walked up to the cab, he noticed marijuana seeds on the floorboard of the truck. A subsequent search revealed 450 pounds of marijuana hidden in the inside ceiling of the camper. The checkpoint at Falfurrias, Texas, is a permanent checkpoint within United States v. Martinez-Fuerte [Sifuentes v. United States], 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and stops for brief questioning as to citizenship are consistent with the Fourth Amendment. See United States v. Diaz, 541 F.2d 1165 (5th Cir. 1976); United States v. Kidd, 540 F.2d 210 (5th Cir. 1976); United States v. Garza, 539 F.2d 381 (5th Cir. 1976). A search at a permanent checkpoint is valid if, after stopping the vehicle, the Border Patrol agent finds probable cause to make the search. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 46 L.Ed.2d 623 (1975). The incongruity in the camper’s" }, { "docid": "23702267", "title": "", "text": "CLARK, Circuit Judge: In this direct criminal appeal from conviction of possession of marijuana with intent to distribute (21 U.S.C. § 841(a)(1)), appellant Freund raises two issues which relate to the validity of a warrantless search of his truck conducted by a Customs Control officer. Specifically, appellant contends that: (1) the officer lacked probable cause to search the vehicle and (2) the trial court erred in denying his request for disclosure of the identity of a government informer who witnessed the search and ensuing arrest. Without the aid of supplementary proceedings in the district court, this court is unable to clearly assess the propriety of the trial judge’s refusal to order disclosure and its effect on the issue of probable cause. We thus remand the case with directions that the district court interview the informer-witness in camera for the purpose of determining whether disclosure is warranted under the balancing test prescribed by the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). I. THE FACTS Appellant’s sole defense at his non-jury trial was that the evidence which formed the basis of his conviction was secured as a result of an illegal search and seizure and thus should have been suppressed. To resolve appellant’s claim of an illegal search, a detailed recitation of the events preceding the search is required. Customs Control Officer Regala testified that on May 17, 1974, he received a tip from a reliable informer that an individual in El Paso was attempting to purchase a large quantity of marijuana from Mexico. Although no name or description of the person was given, the tipster stated that the individual was driving a red utility truck bearing North Carolina license plates, No. AE 8420. The next evening at approximately 10:00 p.m. Regala was foot-patrolling the Rio Grande a mile away from the port of entry at Fabens, Texas, when he observed two vehicles approach each other from opposite sides of the border, stop and turn their lights off. The vehicle from the American side then left the area and drove" }, { "docid": "2595307", "title": "", "text": "warrantless searches conducted pursuant to 8 U.S.C.A. § 1357(a). Under section 287(a) of the Immigration and Nationality Act, 8 U.S.C.A. § 1357(a), Congress extended the warrantless border search to empower any officer or employee of the Service without a warrant, (3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or .vehicle, . for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States. 8 U.S.C.A. § 1357(a)(3). In Almeida-Sanchez, a roving patrol of the United States Border Patrol stopped a Mexican citizen holding a valid United States work permit, searched his vehicle, and discovered a large quantity of marijuana. The search was conducted some 25 miles north of the Mexican border, on an east-west state highway in California which is at all points at least 20 miles north of the border. Between the state highway and the border lies a major east-west federal highway. After conviction of having knowingly received, concealed and facilitated the transportation of illegally imported marijuana in violation of 21 U.S.C.A. § 176(a), defendant appealed on the ground that the search of his automobile by the roving patrol was unconstitutional under the Fourth Amendment and that, under the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913), the marijuana should not have been admitted as evidence against him. The Ninth Circuit upheld the validity of the search, United States v. Almeida-Sanchez, 452 F.2d 459 (9th Cir. 1971), pursuant to 8 U.S.C.A. § 1357(a). Reversing the decision of the Ninth Circuit, the Supreme Court held that a warrantless search for aliens by a roving border patrol without probable cause or consent violates the Fourth Amendment guarantee against unreasonable searches and seizures. Finding no support for such a breach in either its automobile search decisions or its administrative decisions, the Court rejected the Government’s argument that the search was justified under 8 U.S.C.A. § 1357(a). “It is clear," }, { "docid": "13930609", "title": "", "text": "PER CURIAM: Cecilia Herrera Garza appeals from a judgment of conviction of possession with intent to distribute approximately 550 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Garza contends that the stop and search of her car which revealed the marijuana were in violation of her Fourth Amendment rights. The stop and search of her car were however permissible, and accordingly we affirm. On the morning of November 24,1974, at about 2:00 a. m., Border Patrol officers Ruiz and Martinez were observing traffic at the intersection of U. S. Highway 59 and Texas Highway 16 in Freer, Texas. The intersection, which is controlled by a traffic signal, is approximately 60 miles from the Mexican border. Officer Ruiz saw two vehicles, a 1964 Ford and a 1969 Chrysler, approaching from the south on Highway 16. Using their binoculars, the officers observed what they considered to be a strange sequence of events. One vehicle stopped at the intersection, and the other pulled up beside it. Each vehicle had two occupants and each vehicle bore license plates containing letters which indicated the two vehicles were registered in the same county, perhaps the same city. Once the vehicles stopped, the occupants of both vehicles seemed to engage in conversation. At that point, the 1964 Ford, being in the proper lane to do so, made a righthand turn onto Highway 59 and the appellant’s vehicle, a 1969 Chrysler, also turned right from what would be considered the improper traffic lane. The officers considered these circumstances sufficiently suspicious to warrant an immigration check. The officers followed the vehicles, but just as they were about to turn on their red light, the vehicles turned into a cafe parking lot. At this point, the officers noticed that the appellant’s vehicle appeared to be heavily loaded. The appellant was already walking toward the restaurant when the officers pulled into the parking lot. Officer Ruiz approached the Chrysler, identified himself to the male passenger, and began to interrogate him as to his citizenship. Almost immediately he smelled the odor of marijuana. He called to the appellant and ordered" }, { "docid": "14541216", "title": "", "text": "EBEL, Circuit Judge. Defendant-Appellant Guadalupe Quin-tana-Garcia (“Defendant”) entered a con ditional guilty plea to a three-count indictment charging her with conspiring to possess with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 846; possession with intent to distribute less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(d) and 18 U.S.C. § 2; and possession of cocaine, in violation of 21 U.S.C. § 844. She reserved her right to appeal the district court’s denial of her motion to suppress evidence obtained as the result of a Border Patrol Agent’s allegedly illegal stop of the vehicle in which she was traveling. We take jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons that follow, AFFIRM the district court’s denial of Defendant’s motion to suppress. I. BACKGROUND On the morning of June 30, 2001, Border Patrol Agent Rudy Sanchez parked his marked patrol vehicle on the side of Highway 26, a road that carries mostly local traffic between the towns of Deming and Hatch in southern New Mexico, approximately 50 to 60 miles from the Mexican border. There are three permanent Border Patrol checkpoints in southern New Mexico but none on Highway 26, which is known as a “back door” for smugglers wanting to avoid the checkpoints. At approximately 11:45 a.m., Agent Sanchez saw a large, gray Chevy Suburban traveling north on Highway 26, away from the Mexican border. Having previously arrested smugglers of both illegal aliens and drugs who drove sport utility vehicles, he knew that smugglers tended to prefer large vehicles because they can carry more cargo. The Suburban also had tinted windows, which is another feature preferred by smugglers, and Mexican license plates, which was somewhat unusual as most of the traffic on Highway 26 was local traffic used by New Mexico residents in the area. Agent Sanchez learned from a radio dispatcher that the car had passed through a border checkpoint at the Mexican border approximately two to three hours earlier. Agent Sanchez also thought it significant, for two reasons, that the car was" }, { "docid": "5226237", "title": "", "text": "Rey-mundo H. Sanchez inquired where she was going. Defendant responded that she was traveling to Ruidoso, New Mexico, for two days. The agent asked for and received' permission to inspect the trunk of her vehicle. The trunk contained no luggage. Another Border Patrol Agent, Eligió Pena, then squatted down and looked under the vehicle. Using a mirror and flashlight, Agent Pena saw shiny bolts on the gas tank support straps. Suspecting the gas tank had been altered to conceal narcotics, he referred defendant to the secondary inspection area and obtained verbal consent to conduct a dog search of the vehicle.. After the dog alerted, defendant signed a written form consenting to a full search of the vehicle. Agents retrieved approximately 25 pounds of marijuana from the vehicle’s gas tank. On November 20, 1991, defendant was indicted for possession with intent to distribute less than 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). She pled not guilty and filed motions for pretrial production and to suppress the evidence. The motions were denied. Defendant was tried twice. Her first trial ended in a mistrial because the jury could not reach a unanimous decision. She was retried and convicted in March 1992. I. The district court denied defendant’s motion to suppress on the ground that the border patrol agents had reasonable suspicion to conduct the undercarriage inspection and the dog search. Specifically, the court found “everything the officer did was more than reasonable, and his suspicions were justified;. there was no illegal detention and no illegal search.” On appeal, defendant contends the district court’s finding of reasonable suspicion is “clearly erroneous.” Defendant maintains because permanent border patrol stops must be immigration-related, she should have been free to leave once she produced valid documentation. Instead, she was involuntarily detained at the primary checkpoint area while Agent Pena searched the undercarriage of her vehicle. According to defendant, her detention was unlawful because the inspection “was directed toward matters unrelated to the original [immigration-related] reason for the stop” and because Agent Pena lacked reasonable suspicion. Thus, she claims the marijuana seized" }, { "docid": "2973467", "title": "", "text": "PER CURIAM: Almeida-Sanchez appeals from a conviction for knowingly receiving, concealing and facilitating the transportation and concealment of approximately 161 pounds of illegally imported marijuana. 21 U.S.C. § 176a. His sole contention is that the district court erroneously denied a motion to suppress evidence, marijuana, found in a search of his car, without a warrant. We affirm. Appellant’s vehicle was stopped by two officers of the Immigration and Naturalization Service who were conducting a roving check for aliens some 50 miles north of the Mexican border on Highway 78. One of the officers looked under the rear seat of the automobile and discovered packages that he believed to be marijuana. A subsequent search revealed many other packages of marijuana distributed throughout various parts of the vehicle. While the officer himself had never found aliens under the rear seat of an automobile, he had heard of several instances in which aliens had been concealed there. The officers had just received an information bulletin from the headquarters of the Border Patrol stating that aliens entering the United States illegally, had recently adopted the practice of sitting up directly behind the back seat of an automobile with their feet and legs doubled up under the rear seat cushion; springs would be removed from the rear seat to provide space for their legs. This court has approved the right of Immigration Officers acting under 8 U.S.C. § 1357, 8 C.F.R. § 287.1, to stop and investigate vehicles for concealed aliens within a hundred air miles from any external boundary without a showing of probable cause. Duprez v. United States (9 Cir. 1970) 435 F.2d 1276; Fumagalli v. United States (9 Cir. 1970) 429 F.2d 1011; Miranda v. United States (9 Cir. 1970) 426 F.2d 283. A stop and search effected under 8 U.S.C. § 1357 is not a “border search” and does not depend for its validity upon the law of border searches. See Duprez v. United States, supra. Since the initial search under the rear seat of appellant’s automobile was confined to a place where an alien might be concealed, the search was" }, { "docid": "15053866", "title": "", "text": "PER CURIAM: Daniel Alderete, Jr. appeals from his non-jury conviction of possession of eighty-one pounds of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He complains that the stop and subsequent search of his truck at the Sarita, Texas checkpoint was in violation of his fourth amendment rights in that the search was not supported by either a warrant or probable cause. His contentions have no merit and the conviction is affirmed. The stopping of Alderete’s truck at a permanent Border Patrol checkpoint for routine questioning about the citizenship of the occupants was a lawful stop under the fourth amendment and no warrant was required. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Probable cause for a further detention and search of the truck was established when Border Patrol Agent Hippie detected the odor of marijuana while talking to the occupants of the truck. Furthermore, after the passenger in the middle failed to respond to questions, Agent Hippie asked that the truck’s door be opened so he could better communicate with the silent passenger. When the door was opened the odor of marijuana became stronger and the agent observed marijuana sweepings on the floor of the cab. A subsequent search produced eighty-one pounds of the contraband material. This court has held that the odor of marijuana emanating from a vehicle stopped at a Border Patrol checkpoint is sufficient to establish probable cause for the search of the .vehicle. United States v. Rojas, 538 F.2d 670 (5th Cir. 1976). Even if there had been no odor the search here would be valid since the Sarita checkpoint has been determined to be the functional equivalent of the border, United States v. Rodriguez, 537 F.2d 120 (5th Cir. 1976), at which probable cause is not required for a search. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); United States v. Hart, 506 F.2d 887 (5th Cir. 1975), aff’d after remand, 525 F.2d 1199 (5th Cir. 1976). The judgment of conviction is AFFIRMED." }, { "docid": "14219040", "title": "", "text": "PER CURIAM: Maria Hernandez Leal was convicted of possessing 292 pounds of marijuana with intent to distribute. She argues that the search that produced the marijuana was unconstitutional, that the evidence was not sufficient to convict, and that the trial court erred in its charge to the jury. We reject all of these contentions and affirm the conviction. The testimony at trial established the following. On the evening of May 13, 1974, defendant, driving a car, approached a border patrol checkpoint 16 miles south of Falfurrias, Texas, on U.S. Highway 281. The border patrol agent on duty noticed that the car was heavily loaded. When the car stopped, the agent made an inquiry into citizenship and he detected a strong odor of marijuana emanating from the car. The agent then asked the defendant to pull to the side of the road and to open the trunk,' where a suitcase containing marijuana was found. A complete search of the car led to the discovery of the 292 pounds of marijuana in question here. The Falfurrias checkpoint is a permanent checkpoint. E. g., United States v. Torres, 537 F.2d 1299 (5th Cir. 1976). Stopping a vehicle at a permanent Border Patrol checkpoint to inquire into the occupant’s citizenship does not offend the fourth amendment. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Torres, supra. The strong odor of marijuana gave the officer probable cause thereafter to search the vehicle. Torres, supra, 537 F.2d at 1300; United States v. Coffey, 520 F.2d 1103,1104 (5th Cir. 1975). We find no merit, therefore, in appellant’s contention that the search was unconstitutional. During the charge to the jury, the court addressed the problem of determining the intent of the accused: [Y]ou may infer the defendant’s intent from the surrounding circumstances. You may consider any statements made or acts done or omitted by the defendant and all other facts and circumstantial evidence which indicates [sic] state of mind. Appellant urges that this portion of the charge “had the effect of negating the Court’s instruction with regards to the privilege against self-incrimination" }, { "docid": "6825140", "title": "", "text": "BARNES, Circuit Judge. Appellant was charged in Count I with unlawfully importing and bringing into the United States from Mexico fifty-eight pounds of marijuana on January 20,1960, contrary to Title 21 U.S.C.A. § 176a. Count II charged a violation of the same act on the same date with respect to the same amount of marijuana brought from Mexico by concealing and facilitating transportation thereof. Appellant was sentenced to fifteen years imprisonment on each count, the sentences to run concurrently. A motion to suppress the fifty-eight pounds of marijuana allegedly illegally obtained as evidence was made and denied below. Appellant urges five grounds for reversal : (1) The stopping of his car, his arrest, and the search of his car, were without warrant or probable cause, and hence violative of the Fourth Amendment. (2) The motion to suppress the fifty-eight pounds of marijuana found in the car of codefendant Singh should have been granted. (3) The government should have been required to elect between prosecuting appellant for possession and transportation of the one seed of marijuana in his vehicle (a Dodge) or the fifty-eight pounds of marijuana found in Singh’s vehicle (a Mercury). (4) Appellant was prejudiced by the court’s calling of eodefendants as the court’s witnesses, and by the court’s reading of the codefendant Singh’s presentence report out of defendant’s presence. (5) The court erred in admitting hearsay testimony of a customs officer. Appellant’s car was stopped by two United States Customs Agents some fifty or sixty miles north of the Mexican border, at 11:30 A.M. on January 20, 1960, after it had crossed the border at Calexico, California, about 9:30 A.M. on that same day, and had been followed by customs agents to the point where it was stopped. Appellant had no record of any conviction, either for a narcotics offense or otherwise. He had been stopped and searched many times at the border, but never had any narcotics or other prohibited articles been found on his person or in his vehicle. The Customs Service received information appellant had been hiring other persons to smuggle marijuana into the United" }, { "docid": "15270857", "title": "", "text": "JERRE S. WILLIAMS, Circuit Judge: This appeal is by Arnaldo Melendez-Gonzalez, convicted after a bench trial of possession with intent to distribute marihuana in violation of 21 U.S.C. § 841(a)(1). It poses the sole question whether the stop and search of his automobile violated the Fourth Amendment. After carefully reviewing the circumstances surrounding the stop, we conclude that the roving border patrol agents lacked sufficient cause to justify the warrantless stop. Since the stop was illegal, the court erred in failing to grant defendant’s motion to suppress the contraband obtained as a result of the search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We also find that the search itself was illegally conducted since the agents did not have probable cause to search the automobile. FACTS On February 6, 1983, Border Patrol Agent Horger and his partner, Agent Hamilton, were stationed in Marfa, Texas. They were working the midnight to eight shift on Highway 67 between Marfa and Presidio, a town on the Texas-Mexico border. Highway 67 extends from Presidio, through Shatter to Marfa. The agents were sitting in a patrol car, stationed in an office parking lot on the east side of Highway 67 on the outskirts of Marfa. Marfa is a town of 2500 residents, located sixty miles north of the border. At approximately 4:57 a.m., the agents were alerted by activation signals on their radio indicating that traffic was crossing a sensor located on the highway approximately 25 miles south of Marfa. Two minutes after the first activation, the agents observed a second hit on the sensor. Twenty or twenty-five minutes later, the agents observed two vehicles enter Marfa, driving only 50 yards apart. The first vehicle was a white pickup truck occupied by one person; the second vehicle was a silver automobile occupied by two persons. The automobile appeared to the agents to be “heavily loaded”. The pickup truck stopped in the parking lot of a convenience store, but the silver automobile proceeded on to the intersection of Highway 67 and Highway 90. At this point, the agents" }, { "docid": "18338402", "title": "", "text": "5. The government failed to establish by competent evidence that the search occurred within 100 air miles from the international border with Mexico. In considering this case, we are bound (as was the Court in McCormick, supra), to view the facts in the light most favorable to the government. United States v. Ireland, 456 F.2d 74 (10th Cir. 1972). This we do, and compare the facts herein to the facts of McCormick, supra. I. Facts in United States v. McCormick. The latter case reveals that on November 30, 1971, McCormick was a passenger in a G.M.C. “van” driven by one Sanchez, which was stopped at a United States Immigration & Naturalization Border Patrol check-point, near Truth or Consequences, New Mexico, some 98 miles from the Republic of Mexico border, by border inspectors looking for aliens. Two inspectors approached the vehicle. One inspector saw a plaid bag and a large black tarpaulin within the car, and the other inspector “detected the odor of marijuana from within the vehicle.” The vehicle was ordered to be taken to a siding for inspection. There an inspector entered the van to look under the tarpaulin. He saw “a plastic bean bag type chair” and when he attempted to move it, a “paper wrapped brick object” fell out. When unwrapped, this object was found to be a brick of marijuana. Further search revealed 164 bricks, or 1,400 pounds of marijuana. Both McCormick and Sanchez were arrested, and a subsequent search of an airline flight bag revealed another marijuana brick. II. Facts in this case. At 10:30 p. m., on December 10, 1971 (ten days after the McCormick arrest), defendant Anderson drove his vehicle (some kind of a “van”) up to the stop sign which, with red “cones”, “barricaded” the highway at a United States Immigration & Naturalization Border Patrol check-point, three miles north of the city limits of Truth or Consequences, New Mexico. (This check-point was described by the Border Patrol Inspectors —and found by the trial judge — to be 98 air miles north of the Republic of Mexico border.) At this point, border inspectors" }, { "docid": "21881574", "title": "", "text": "point behind the truck, the agents observed that the truck was loaded with bales of hay, that the bales were “clumsily stacked” and that there were 4\" gaps between some of the bales. From these factors, the agents suspected that the truck contained secret compartments, with gaps between the bales to provide air for illegal aliens. Although neither had observed aliens transported in this manner, both had “heard reports” of similar incidents. A decision was made to stop the truck for an immigration check. While Agent Ortiz questioned Cosme Es-camilla as to his citizenship, Agent Casas peered through some cracks in the side board of the truck, seeing what he thought to be burlap sacks. Agent Casas also detected a “strong odor” of marijuana emanating from the truck. Based on these observations, the agents searched the truck and discovered 2,844 pounds of marijuana underneath the bales of hay. After finding the marijuana, Agent Ortiz drove north on Highway 16, stopped the vehicle driven by Valentin Escamilla and placed him under arrest. Ortiz testified that he had thought the two vehicles were connected because, after turning north on Highway 16, the truck slowed down, enabling the car to negotiate the turn and catch up. Following a jury trial in the United States District Court, Southern District of Texas, appellants were convicted of conspiracy to possess and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846. Prior to trial on the merits, appellants moved to suppress all evidence obtained by means of the allegedly unlawful search of their vehicle. The trial court, convinced that the evidence sufficed to meet the “reasonable suspicion” standard applicable to investigatory stops by roving border patrols, denied the motion. We reverse. I. The Legal Standard The decision in this case is controlled by the principles announced in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In that case, the Court held that “[e]xeept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts," }, { "docid": "18338401", "title": "", "text": "PER CURIAM. This is an appeal from defendant’s one-count conviction of possession of marijuana, with intent to distribute it (21U.S.C. § 841(a)(1)). Prior to trial, defendant moved to suppress the evidence obtained, based upon an alleged illegal search of and seizure within his vehicle, of the marijuana; and because the road block which stopped his vehicle was unconstitutional. Since this case was heard by this panel, there has been filed an opinion in United States v. McCormick, 468 F.2d 68 (10th Cir. 1972). We find it controlling on the principal issues presented herein, and therefore affirm the conviction. Five alleged errors are herein charged: 1. That the stopping of vehicles on a public highway so far from the Mexican border was a denial of the right of free passage on highways. 2. There existed a lack of probable cause for arrest without a warrant. 3. Evidence obtained by the warrant-less search of defendant’s vehicle was not admissible. 4. Border patrol agents have no authority to search without a warrant in an attempt to find marijuana. 5. The government failed to establish by competent evidence that the search occurred within 100 air miles from the international border with Mexico. In considering this case, we are bound (as was the Court in McCormick, supra), to view the facts in the light most favorable to the government. United States v. Ireland, 456 F.2d 74 (10th Cir. 1972). This we do, and compare the facts herein to the facts of McCormick, supra. I. Facts in United States v. McCormick. The latter case reveals that on November 30, 1971, McCormick was a passenger in a G.M.C. “van” driven by one Sanchez, which was stopped at a United States Immigration & Naturalization Border Patrol check-point, near Truth or Consequences, New Mexico, some 98 miles from the Republic of Mexico border, by border inspectors looking for aliens. Two inspectors approached the vehicle. One inspector saw a plaid bag and a large black tarpaulin within the car, and the other inspector “detected the odor of marijuana from within the vehicle.” The vehicle was ordered to be taken to" }, { "docid": "18338404", "title": "", "text": "were looking for aliens. The first inspector “smelled what appeared to be the odor of marijuana.” The vehicle was ordered to pull over to the side for further inspection. There a second inspector, having been told the first inspector had smelled marijuana, looked into the van from outside, with a flashlight, and saw an “expended marijuana cigarette” — (a “roach”) — in the ash tray of Anderson’s van. The second inspector, familiar with the odor, also smelled marijuana “when the window was rolled down.” He also saw a foot locker with a part of a “black plastic garbage bag” sticking out of it. This black bag is a “common container” used to transport marijuana in that area. A search of the van’s contents for marijuana revealed marijuana in the foot locker, in a black suitcase, and in a white suitcase, with one package of marijuana open and spilled — some 50 pounds of marijuana in all. III. Stopping the vehicle. We consider the right of Immigration & Naturalization Border Patrol officers to stop vehicles on the highway, and, without warrants, search them for aliens, is well established (both by statute and case law), if “within a reasonable distance” of this country’s external boundaries. United States v. McCormick, supra, 468 F.2d at 72. Thus the stopping of appellant's vehicle was lawful if the check-point was within “a reasonable distance” from the Mexican border. This Court (Roa-Rodriquez v. United States, 410 F.2d 1206 (10th Cir. 1969)), and other circuits, have held that within 100 miles is such a reasonable distance. IV. The vehicle search. The search for marijuana, though without a search warrant, under the circumstances herein existing, which created probable cause, was reasonable. “It is well settled that a valid search of a vehicle moving on a public highway may be had without a warrant, if probable cause for the search exists, i. e., facts sufficient to warrant a man of reasonable caution in the belief that an offense is being committed.” Fernandez v. United States, supra, 321 F.2d 283 at 286-287 (emphasis added) citing: Carroll v. United States, 267 U.S." } ]

[ { "docid": "5561016", "title": "", "text": "GRONER, Associate Justice. Congress, by Act of May 25, 1926, as amended by Acts of January 13, 1928, and March 31,1930 (44 Stat. 630, 45 Stat. 51, 46 Stat. 136 [40 USCA § 341 et seq. and notes]), authorized the Secretary of the Treasury to acquire by condemnation certain lands and buildings in the city of Washington for the executive departments and independent establishments of the government. As a result this proceeding was instituted under section 10 of the Act of March 1,1929 (45 Stat. 1415 [D. C. Code 1929, T. 25, § 109]). The act contains the usual provisions found in condemnation statutes, but, in addition, provides in section 10 an emergency method of •advance taking, in ■which case a “declaration of taking” must be filed stating the authority under which and the public use for -which the property is taken, an accurate description, the sum of money estimated by the acquiring authority (the Secretary of the Treasury) “to be just compensation,” and, upon the filing of this declaration and the deposit in court of the estimated amount of compensation, it is provided that title in fee simple shall vest in the United States, but with the right to the owner of the property taken to have its full and just value ascertained in a proceeding in the Supreme Court of the District—a condemnation proceeding—and to have judgment therein against the United States for the unpaid amount with interest at the rate of 6 per cent, per annum on the award or so much as is unpaid from the date of the taking to the date of final payment. The statute also gives the court in which the proceedings are pending power to fix the time and terms of the surrender of the property. In the ease at bar, the court below, having ascertained that the United States had complied with the provisions of the act and the condemnation jury having been appointed and having viewed the premises, directed that appellants’ land be surrendered on February 15, 1932. The appeal challenges the validity of the order on the ground" } ]

[ { "docid": "14331660", "title": "", "text": "MEDINA, Circuit Judge. After the United States, on August 13, 1952, instituted condemnation proceedings against land owned by appellant and payment for part of the value of this land was received by appellant, appellant recovered a verdict for an additional amount as just compensation for the land in a trial which ended on May 7, 1956. The judgment entered on this verdict directed the Government to deposit the sum found due, plus interest, with the Court; and directed the Clerk of the Court, upon the deposit of that amount, to “distribute said sum forthwith” to appellant. On June 28, 1956, the Government deposited the sum due, including interest. On July 2, 1956, before the funds deposited had been distributed by the Clerk, the Government filed its notice of appeal from the judgment, and also secured an ex parte order staying distribution of the money pending the final disposition of the appeal. It appears from examination of the docket entries that no notice or copy of this order was sent to appellant’s counsel, but on July 6, 1956 there was mailed to counsel for appellant a notice of motion by the United States, returnable on July 16, 1956, to set aside the stay of distribution which it had secured. In the body of this motion the Government stated that it desired to have the stay vacated because it might make the United States liable for interest on the deficiency. This motion was filed on July 10, 1956, but the motion was not prosecuted by either side. The funds deposited by the Government remained with the Court until, on May 8, 1957, the United States, by stipulation, withdrew its notice of appeal, and the fund on deposit was paid to appellant. Thereafter, appellant moved the court for an order awarding it interest from June 28, 1956 until May 8, 1957, on the deficiency award. Appellant’s motion was denied and this appeal was taken. Despite appellant’s argument that it was required to do nothing but sit back and wait for the money after the judgment entered on May 11, 1956 directed the Clerk" }, { "docid": "3465683", "title": "", "text": "claimants and a subsidiary dispute arose as to whether the City should pay interest to such claimants at the rate of 6% which it received under the deficiency award from the government or only at the rate of 4% at which under state law the City was chargeable with interest on its obligations. This was decided adversely to the City and it has not appealed. The only question raised on this part of the case therefore is as to the proper amount of the government’s obligation for interest to the City. Although these proceedings are very complicated because of the great number of diverse interests in the property and the corresponding number of claimants to the funds deposited, the applicable law seems to be fairly well settled. The validity and effectiveness of the taking of the property is unquestioned and so is the liability of the government to pay just compensation for it. Equally unquestioned is the liability of the government to pay some deficiency interest as a part of that just compensation, previous litigation and agreement having resolved all disputes relating to that part of the just compensation which is not included in the term deficiency interest. The purpose and' effect of § 258a of Title 40 U.S.C.A. in a simple case of the taking of property to which a known owner has a clear title is ■ to give the government possession at once and to give the owner immediate payment either in full or to the extent of the estimated value deposited. If the deposit turns out to be less than the actual value the owner is given the fair equivalent of immediate payment in full by additional compensation at the rate-of six per cent of the difference between the amount deposited and the actual value. United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. This is in accord with decisions under the earlier procedure holding that when possession of the condemned land is taken before payment interest for the interval is a part of the just compensation. Seaboard Air" }, { "docid": "8932839", "title": "", "text": "the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title to said lands in fee simple absolute or such less estate or interest therein as is specified in sad declaration, shall vest in the United States of America, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding, and established by judgment therein, and the said judgment shall include, as part of the just compensation awarded, interest at the rate of 6 per centum per annum of the amount ñnally awarded as the value of the property as of the date of taking, from said date to the date of payment; but interest shall not be allowed on so much thereof as shall have been paid into the court. 40 U.S.C. § 258a (emphasis added). In United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943), the Supreme Court explained the above-quoted language as follows: The purpose of the statute is two-fold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government’s estimate of the value of the property. The Act recognizes that there may be an error in the estimate, and appropriately provides that, if the judgment ultimately awarded shall be in excess of the amount deposited, the owner shall recover the excess with interest .... * * * * * The payment is of estimated compensation; it is intended as a provision and not a fínal settlement with the owner; it is a payment “on account of ’ compensation and not a final settlement of the amount due. 317 U.S. at" }, { "docid": "3465686", "title": "", "text": "for the determination and payment of just compensation for property condemned which eliminates payment of interest on such part of the value as the government does not dispute. See Albrecht v. United States, 329 U.S. 599, 605, 67 S.Ct. 606, 91 L.Ed. 532. The government is not required as the result of the adoption of a new procedure to pay more than just compensation as the price of immediate possession, by analogy to the above decisions, and to the extent that it makes an unequivocal deposit of 'that compensation in court it has satisfied its obligation to pay for the property as of the time of taking whether the claims of ownership be clear or questioned. An absolute taking of the property designated in the declaration takes all interests and gives the government a clear title to everything as of the date of the taking, A. W. Duckett & Co. v. United States, 266 U.S. 149, 45 S.Ct. 38, 69 L.Ed. 216; United States v. Foster, 8 Cir., 131 F.2d 3, and in so far as the government then makes payment into court of the value of the whole it satisfies its obligation to all claimants, however numerous their claims may be. It would, of course, be desirable and greatly aid the court in passing upon applications for withdrawals where there are numerous interests and disputing claimants to have the government allocate the deposit and earmark definite amounts for designated claimants but we think this is not a condition either upon its getting possession or upon its making constructive payment to any and all owners of compensable interests in the property taken. Cf. Meadows v. United States, 4 Cir., 144 F.2d 751. Although a lump sum deposit may not give the owner of a subsidiary interest information as to just how much the government has by deposit put at his disposal he must assume that the estimated fair value of his interest is included and elect whether to leave it on deposit or take the necessary steps to withdraw it. United States v. 9.45 Acre of Land, 2 Cir., 151" }, { "docid": "23462124", "title": "", "text": "the separate parcels involved. It is further simplified by the answers and petitions filed by the owners named in the petition for condemnation, as to most of the parcels, in which they respectively accept the amounts deposited as just compensation and request that it be paid to them less deductions for specified liens and charges, the amounts of the latter being also established by other clear papers or evidence in the case. On August 11, 1941 the government filed a motion “for the entry of judgment based on the petition, the answers and the stipulations filed herein determining that the just compensation payable to the petitioners for parcels Nos. 1, 2, 3, 6, 7, 9, 10, 11, 12, 13, 14, 17 and 19 shall be the amounts deposited into the registry of this court as estimated just compensation for the said parcels, and determining that the just compensation payable for the taking of parcel No. 8 shall be the sum of $23,000 inclusive of interest”. Thereupon the court ordered the clerk to notify all parties to the case whose addresses were known that a hearing would be held on August 15, 1941 with respect to applications for distribution of portions of the funds deposited in court. This hearing has now been held. With respect to the first question, as to the time when orders for payment may properly be made, it may be said generally that this depends upon the nature and circumstances of the particular case; but no payment should be ordered until all the persons named in the proceedings as having a possible interest in the fund have been duly notified, and their answers filed or defaults taken against them, and after this necessary judicial procedure the court may then, with all parties in interest before it, properly proceed to adjudicate the distribution of the fund. But no distribution should be ordered unless and until all persons made defendants by the petition, or shown by testimony in the case to be interested in the fund, have been duly notified and are actually or constructively present before the court." }, { "docid": "4773639", "title": "", "text": "it existed at the time of the payment of the award, was deductible.” No question of time of passage of title was involved in that case. In United States v. 125.71 Acres, D.C.Pa., 54 F.Supp. 193, condemnation proceedings were commenced and possession taken of the land in August of 1939. In December of 1943, the amount of the verdict was paid into the registry of the court. The court held that title did not vest in the United States until the latter date, and that taxes accruing in the interim were liens payable out of the fund deposited by the United States. It appears that no declaration of taking was filed. In United States v. 12,918.28 Acres, D.C., 51 F.Supp. 755, the United States took possession of land on July 3, 1941, and filed its declaration of taking on January 2, 1942. Taxes became a lien on the property on December 20, 1941. The court held that since title remained in the owners until the declaration of talcing was filed, the tax lien attached to the proceeds. I conclude that the fund is subject to liens for taxes assessed prior to the filing of the declaration of taking. The proposed judgment provides for interest at the rate of six percent per annum from July 25, 1942, the date the United States took possession, to March 15, 1945, the date of filing the declaration of taking, on the entire amount of the award, and, following the provisions of section 258a, for interest from March 15, 1945, of six percent per annum on the amount of the award, less the amount deposited with the declaration of taking. Defendants contend that they should have interest at the rate of seven percent from July 25, 1942, to March 15, 1945. Ordinarily this court would feel bound to follow the Federal statute as to the rate of interest constituting just compensation, indicated by the provision ‘for six percent interest after the declaration of taking is filed. However, there is authority permitting the court to use as a measure of interest in condemnation cases the legal" }, { "docid": "7958399", "title": "", "text": "court the defendants should not be entitled to any interest on the sum so paid into the court, but should be entitled to interest at the rate of Six per cent per annum on any additional amount which might hereafter be awarded. Of course if the ownership of the land is in dispute or if some difficulty of title should appear or there be claims of liens, these incidental matters would have to be first cleared up before the deposit is paid. However, in the instant case there is no such difficulty. The amount of compensa tion that the Government is willing to pay has been stated in its Declaration. It appears and admits that the- title is good and marketable; that it is willing to accept the same; that there is no dispute as to the parties to whom compensation must be paid; and that there are no liens or claims of any character outstanding against the property, save only a portion of the taxes for the year 1941. Under these circumstances, what reason can be adduced for withholding payment from the owners ? The owners have been deprived of the use of the property. Under the terms of the statute they are not entitled to interest on the amount of money deposited, so wby should they not have the entire amount of money in lieu of the property, which has been taken? Section 258a provides that “upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compen-rr sation to be awarded in said proceeding.” Such application has been made and no reason has been shown to me why the defendants should not 'receive the full amount paid into the registry of the court at this .time, subject only to the payment of taxes, which is hereinafter discussed. The views outlined in the foregoing are thoroughly in accord with those set forth in the case of United States v. Certain Lands in Borough of Brooklyn, D.C.," }, { "docid": "7958397", "title": "", "text": "occupancy, should, in my opinion, be passed over at this time, as they are more properly triable when the real merits of the case are presented. The instant matter before me is as to whether or not the defendants are entitled (1) to be paid the entire amount deposited in the registry of the court, or whether only a portion of the same should be paid, and (2) are the outstanding taxes, which are a lien on the property, to be paid from the funds in the registry. In deciding the first question we are necessarily confronted with the language of the statute. Section 258a provides, among other things, that when the Declaration of Taking is filed it should contain “a statement of the sum of money estimated by said acquiring authority to be just compensation for the land taken”. It will thus be seen that the statute requires the Government to fix its estimated value. Up to that time the defendants have not been heard. There is no presentation of the matter before any board or commission, court, referee or other person. The sum of money deposited is what the Government, which is taking the property, itself determined to be “just compensation”. It would seem that the Government by such proceeding is estopped from claiming that the property is worth less than that stated in its Declaration. If this be true, why should any part of the amount deposited be withheld from the former owners, unless of course there be some liens or charges against the property, which must be satisfied, or unless there arise some questions of title. In the case before me it is distinctly stated by both parties that there is no question of title arising. It is admitted that the defendants were the sole owners in fee simple of the premises and the only charges against the premises are the taxes to be prorated for a portion of the year 1941. Section 258a provides that when the Government takes property under a Declaration hereinabove referred to, and pays a stated sum of money into the" }, { "docid": "20156548", "title": "", "text": "the Congress' that the money deposited by the Government be paid immediately to those persons who are entitled to receive it. ' Section 258a, as ■ has been stated, provides for interest only on the excess over the amount deposited. The Congress could not deprive an owner of its property without just compensation. It was the intention of the Congress to provide that the amount deposited should- be immediately paid in full to the persons entitled to receive the same, otherwise it would violate the Fifth Amendment to the Constitution of the United States. See Hessel v. A. Smith & Co., D.C., 15 F.Supp. 953; United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315. In this proceeding the Government acquired title to the premises by the filing of a declaration of taking on the 24th of January, 1941, and a judgment thereon was entered on January 25, 1941. At the time of filing the declaration of taking a notice and petition in condemnation was filed, and attached to said petition is a notice which recites that the persons to' whom it was directed may appear on or before June 8, 1941, and interpose an answer to the petition. The Regis Holding Corporation, the movant, is not required to wait until June 8, 1941, to receive the deposit made by the Government — as a matter of fact it may be many months beyond that, as the proceeding is likely to be protracted. Regis Holding Corporation became the owner of the premises pursuant to a deed dated July 1, 1939, and duly recorded in the office of the Register of.the County of Kings on November 16, 1939, in Liber 5789 of Conveyances, at page 396. It and its immediate grantors have been in peaceable, continuous and undisturbed possession of the property for over twenty years prior to the time title vested in the United States of America. Its title has never been disputed, questioned or rejected nor has it sold, assigned, conveyed or contracted to sell, assign or convey, or in any way transfer the premises or the money" }, { "docid": "8423638", "title": "", "text": "COLLET, District Judge. The question presented is whether the owner of property condemned under authority of Section 258a, Title 40, U.S.C. A., is entitled to interest upon that part of the compensation finally awarded which had been previously paid into Court contemporaneously with the filing of the declaration of taking, but withheld from the owner by order of the Court made upon the request of the Government. The facts are simple. The Government took the land for a proper purpose by proper proceedings. Barnidge v. United States, 8 Cir., 101 F.2d 295. A declaration of taking was filed pursuant to Section 258a, Title 40, U.S.C.A. With the declaration of taking the Government deposited in the registry of the Court the sum of $35,125 as the estimated fair value of the property taken. Thereupon the Court entered a judgment vesting the fee-simple title in the Government and fixing August 15, 1939, for delivery of possession to the Government. Later this date was extended to November 1, 1939. The Collector of Revenue for the City of St. Louis filed a motion asserting a lien upon the funds in the registry of the Court for taxes due. The owners filed their motion for distribution of all of the deposit to them. On September 7, 1939, the Collector’s motion was sustained in part. United States v. Certain Lands in City of St. Louis, D.C., 29 F.Supp. 92. Thereafter, on September 11, 1939, the owners’ motion was submitted. September 15, 1939, an order was entered directing that $25,369.38 be paid to the owners, $1,299.14 be retained for the payment of taxes pursuant to the memorandum Opinión (29 F. Supp. 92), and the additional sum of $8,456.48 be retained in the registry of the Court. The parties in all of these cases accepted the judgment of the Court relative to taxes and stipulated that the taxes due, computed in accordance with the memorandum opinion, be paid to the Collector. Exceptions having . been filed to the Commissioners’ award, the cause was submitted to a jury with the result that a verdict was returned fixing the value" }, { "docid": "3465687", "title": "", "text": "as the government then makes payment into court of the value of the whole it satisfies its obligation to all claimants, however numerous their claims may be. It would, of course, be desirable and greatly aid the court in passing upon applications for withdrawals where there are numerous interests and disputing claimants to have the government allocate the deposit and earmark definite amounts for designated claimants but we think this is not a condition either upon its getting possession or upon its making constructive payment to any and all owners of compensable interests in the property taken. Cf. Meadows v. United States, 4 Cir., 144 F.2d 751. Although a lump sum deposit may not give the owner of a subsidiary interest information as to just how much the government has by deposit put at his disposal he must assume that the estimated fair value of his interest is included and elect whether to leave it on deposit or take the necessary steps to withdraw it. United States v. 9.45 Acre of Land, 2 Cir., 151 F.2d 114. His is the burden to prove how much he is entitled to take down. United States v. Miller, supra. The government may not however retain the benefit of a deposit once made if it in effect withdraws that deposit by its later action in the proceeding. If the government reduces the amount of the deposit or opposes payment on the ground that the withdrawal requested exceeds the value of the property, it becomes liable for interest on the amount by which the deposit is thus reduced. United States v. Certain Land in St. Louis, D.C., 41 F.Supp. 809, affirmed sub nom. O’Donnell v. United States, 8 Cir., 131 F.2d 882; United States v. 3.71 Acres of Land, 50 F.Supp. 110, 628. The same rule should apply in a complex proceeding where the government opposes withdrawal of compensation for an interest taken on the ground that the interest was not one the value of which was included in the estimated compensation. Moreover, while it is sometimes said that the government has no interest in" }, { "docid": "20156547", "title": "", "text": "condemned and title vests in the Government. The court is thereupon empowered in its discretion to order the deposit or any part thereof to be paid for on account of the just compensation to the persons entitled thereto. Section 258a provides that the Government is required to pay just compensation for the land and as part of the just compensation awarded, interest at the rate of 6% per annum on the amount finally awarded as the value of the property as of the date of taking, from that date to the date of payment, but interest shall not be allowed on so much thereof as shall have been paid into court, the deposit stands in place of the land taken. Prior to the enactment of Section 258a the bill, which was subsequently enacted as Section 258a, was discussed in the House of Representatives on December 5, 1930, as appears from the appended excerpt from the Congressional Record, Volume 74, page 777. A reading of these • discussions clearly indicates that it was the intention of the Congress' that the money deposited by the Government be paid immediately to those persons who are entitled to receive it. ' Section 258a, as ■ has been stated, provides for interest only on the excess over the amount deposited. The Congress could not deprive an owner of its property without just compensation. It was the intention of the Congress to provide that the amount deposited should- be immediately paid in full to the persons entitled to receive the same, otherwise it would violate the Fifth Amendment to the Constitution of the United States. See Hessel v. A. Smith & Co., D.C., 15 F.Supp. 953; United States v. Eighty Acres of Land, D.C., 26 F.Supp. 315. In this proceeding the Government acquired title to the premises by the filing of a declaration of taking on the 24th of January, 1941, and a judgment thereon was entered on January 25, 1941. At the time of filing the declaration of taking a notice and petition in condemnation was filed, and attached to said petition is a notice" }, { "docid": "23462120", "title": "", "text": "person shall be deprived of property without due process of law; nor shall private property be taken for public use without just compensation. The absolute fundamentals of due process are jurisdiction, adequate notice, and a fair hearing. In re Condemnation Suits by United States, D.C., 234 F. 443; Clarksburg-Columbus Short Route Bridge Co. v. Woodring, 67 App.D.C. 44, 89 F.2d 788, 790; Johnson & Wimsatt, Inc. v. Hazen et al., 69 App.D.C. 151, 99 F.2d 384; Baltimore Belt R.R. v. Baltzell, 75 Md. 94, 23 A. 74; 20 C.J., Eminent Domain, § 343 et seq.; Tiffany on Real Property, § 2163. What constitutes due process in any given situation may also depend upon the particular procedural provisions of applicable statutes. In the instant case the procedure is controlled by the Maryland statutes, except to the extent that they are modified by section 258a of Title 40, U.S.C.A. The validity of that statute is not here questioned, nor is it at all doubtful because it is a well-established principle of the law of eminent domain that private property may be taken for public use by governmental authority when adequate provision is made for the reasonably prompt payment of the compensation due. United States v. McIntosh, D.C.Va., 2 F. Supp. 244, 252; United States v. Eighty Acres, D.C., 26 F.Supp. 315; Hessel v. Smith & Co., D.C., 15 F.Supp. 953. Under section 258a the estimate of just compensation determined by the taking authority and deposited in court is not conclusive on the property owners as to the full measure of just compensation which, when the estimate is deemed inadequate, is to be determined, as in the present case as to some of the parcels, by a jury after full hearing, and a judgment for a greater valuation, if any, than the sum deposited is to be entered in favor of the persons entitled. The answers to some of these questions will also be necessarily importantly affected by the contents of the government’s petition for condemnation in the particular case, especially with respect to the averments as to ownership, because it is these" }, { "docid": "7958400", "title": "", "text": "can be adduced for withholding payment from the owners ? The owners have been deprived of the use of the property. Under the terms of the statute they are not entitled to interest on the amount of money deposited, so wby should they not have the entire amount of money in lieu of the property, which has been taken? Section 258a provides that “upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compen-rr sation to be awarded in said proceeding.” Such application has been made and no reason has been shown to me why the defendants should not 'receive the full amount paid into the registry of the court at this .time, subject only to the payment of taxes, which is hereinafter discussed. The views outlined in the foregoing are thoroughly in accord with those set forth in the case of United States v. Certain Lands in Borough of Brooklyn, D.C., 39 F.Supp. 91. In an opinion rendered in that case Judge Moscowitz discussed quite fully the proceedings in- Congress at- the time of the adoption of Section 258a. The reasoning set forth therein- is quite persuasive, but, I am pf the .opinion that the language of the Act. is so clear and the power granted to this court so complete by the terms and precise language of the Statute itself, that it is unnecessary to go back to the proceedings of Congress to arrive at a fair and proper construction of the Act. ■ The second question before me is whether or not taxes for part of the calendar year 1941 should be paid from the funds in the registry of the court, or whether the United States is required to pay these taxes by reason of the fact that it had possession of the property. By Act of the General Assembly of South Carolina approved March 21, 1941, 42 Stat. at Large, p. 79, provision was made that in all cases where the United" }, { "docid": "20156549", "title": "", "text": "which recites that the persons to' whom it was directed may appear on or before June 8, 1941, and interpose an answer to the petition. The Regis Holding Corporation, the movant, is not required to wait until June 8, 1941, to receive the deposit made by the Government — as a matter of fact it may be many months beyond that, as the proceeding is likely to be protracted. Regis Holding Corporation became the owner of the premises pursuant to a deed dated July 1, 1939, and duly recorded in the office of the Register of.the County of Kings on November 16, 1939, in Liber 5789 of Conveyances, at page 396. It and its immediate grantors have been in peaceable, continuous and undisturbed possession of the property for over twenty years prior to the time title vested in the United States of America. Its title has never been disputed, questioned or rejected nor has it sold, assigned, conveyed or contracted to sell, assign or convey, or in any way transfer the premises or the money deposited therefor. The premises are free and clear of all mortgages, leases or other encumbrances, except real estate taxes due the City of New York. There is therefore no reason to wait until after the return day of the petition in condemnation for the payment of the deposit. Many months may elapse before the proceedings are terminated. If the Government's position is correct the owner of the property in the meantime can be deprived of its property or the deposit. This was not the intention of the Congress. Section 258a expressly provides that the Court upon application of the parties in interest, may) order that the money deposited in court or any part thereof be paid forthwith for or on account of the just compensation to be awarded in the proceeding. If it should appear in a condemnation proceeding that the applicant is not entitled to the entire deposit, the court may nevertheless award him the part to which lie is entitled (See Memorandum of Judge Byers, dated March 31, 1941, in United States of" }, { "docid": "23436924", "title": "", "text": "use of the United States. The Act further provides that, “Upon the filing of said declaration of taking and of the deposit in the court, to the use of the persons entitled thereto, of the amount of the estimated compensation stated in said declaration, title * * * shall vest in the United States * * *, and said lands shall be deemed to be condemned and taken for the use of the United States, and the right to just compensation for the same shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein. * * * “Upon the application of the parties in interest, the court may order that the money deposited in the court, or any part thereof, be paid forthwith for or on account of the just compensation to be awarded in said proceeding/’ Upon the filing of the declarations and the deposit of the estimated amount of compensation, title becomes vested in the Government and the funds deposited in effect take the place of the property taken. The owner, while divested of the title and right of possession, is vested with the right to just compensation which “shall be ascertained and awarded in said proceeding and established by judgment therein.” In the instant case, the declarations contain recital that “the sum of money ascertained by me as just compensation for the land is set forth in Schedule ‘A’ annexed to and made a part of this declaration.” It is observed that the Act specifically provides that “said compensation shall be ascertained and awarded in said proceeding and established by judgment therein.” Nowhere in the Act is the Secretary of War authorized or directed to “ascertain” the just compensation for the land. That, under the Constitution, the property owner has a right to have determined in a judicial proceeding. In this regard all the Secretary is authorized to do is to file a declaration that the lands are taken for the use of the United States, by what authority under which and the probable" }, { "docid": "20156546", "title": "", "text": "New York State Condemnation Law relating to any subject other than practice, pleadings, forms and proceedings is therefore not applicable in a Federal condemnation proceeding. Under the New York law there is no provision for the taking of title prior to the termination of the condemnation proceeding. Under Section 258a the Government acquired title to the property immediately after filing its petition in condemnation and is not required to wait until the final judgment. Section 258a provides that in a condemnation proceeding of this character the Government may file with the petition or any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the land described in the petition, declaring that said land is to be taken for the use of the United States. The declaration must contain a statement of the sum of money estimated to be just compensation for the land taken. Upon such filing and the deposit in court, to the use' of the persons entitled thereto, of the estimated just compensation, the land is condemned and title vests in the Government. The court is thereupon empowered in its discretion to order the deposit or any part thereof to be paid for on account of the just compensation to the persons entitled thereto. Section 258a provides that the Government is required to pay just compensation for the land and as part of the just compensation awarded, interest at the rate of 6% per annum on the amount finally awarded as the value of the property as of the date of taking, from that date to the date of payment, but interest shall not be allowed on so much thereof as shall have been paid into court, the deposit stands in place of the land taken. Prior to the enactment of Section 258a the bill, which was subsequently enacted as Section 258a, was discussed in the House of Representatives on December 5, 1930, as appears from the appended excerpt from the Congressional Record, Volume 74, page 777. A reading of these • discussions clearly indicates that it was the intention of" }, { "docid": "22742289", "title": "", "text": "the witnesses’ opinions. We do not feel, however, that if there was a disregard of the local practice in this aspect the error is substantial or worked injury to the respondents. 2. We think the court below erred in holding the District-Court without power to enter a judgment against three of the respondents to whom payments in excess of the jury’s verdicts had been made out of the funds deposited with the Court. Examination of the Act of February 26,1931, discloses that the declaration of taking is to be filed in the proceeding for condemnation at its inception or at any later time. When the declaration is filed the amount of estimated compensation is to be deposited with the court, to be paid as the court may order “for or on account” of the just compensation to be awarded the owners. Thus the acquisition by the Government of title and immediate right to possession, and the deposit of the estimated compensation, occur as steps in the main proceeding. The purpose of the statute is two-fold. First, to give the Government immediate possession of the property and to relieve it of the burden of interest accruing on the sum deposited from the date of taking to the date of judgment in the eminent domain proceeding. Secondly, to give the former owner, if his title is clear, immediate cash compensation to the extent of the Government’s estimate of the value of the property. The Act recognizes that there may be an error in the estimate, and appropriately provides that, if the judgment ultimately awarded shall be in excess of the amount deposited, the owner shall recover the excess with interest. But there is no correlative provision for repayment of any excess by the owner to the United States. The necessary result is, so the respondents say, that any sum paid them in excess of the jury’s award is their property, which the United States may not recover. All the provisions of the Act taken together require a contrary conclusion. The payment is of estimated compensation ; it is intended as a provisional" }, { "docid": "23462121", "title": "", "text": "private property may be taken for public use by governmental authority when adequate provision is made for the reasonably prompt payment of the compensation due. United States v. McIntosh, D.C.Va., 2 F. Supp. 244, 252; United States v. Eighty Acres, D.C., 26 F.Supp. 315; Hessel v. Smith & Co., D.C., 15 F.Supp. 953. Under section 258a the estimate of just compensation determined by the taking authority and deposited in court is not conclusive on the property owners as to the full measure of just compensation which, when the estimate is deemed inadequate, is to be determined, as in the present case as to some of the parcels, by a jury after full hearing, and a judgment for a greater valuation, if any, than the sum deposited is to be entered in favor of the persons entitled. The answers to some of these questions will also be necessarily importantly affected by the contents of the government’s petition for condemnation in the particular case, especially with respect to the averments as to ownership, because it is these averments which directly control the subsequent procedure as to notice; and the matter may also be affected by the position taken by the persons named in the petition in their answers to the case. Thus if the petition for condemnation for any particular parcel of land states that there is a single person who is the absolute owner in fee subject to no liens or charges, and thereafter the named owner answers the case, consents to the taking, agrees to the amount deposited as just compensation and asks for the payment thereof from the registry of the court, the case is a simple one which presents no difficulties in procedure; and there seems no obstacle to ordering the payment of the amount deposited to the person so named forthwith upon the application of the party in inter-’ est. United States v. Certain Lands, D.C., 39 F.Supp. 91. The situation is, however, far different when the petition for condemnation states that there are a number of different persons entitled to or claiming ownership or interests in" }, { "docid": "10498402", "title": "", "text": "503, 195 N.E. 173. It is urged by the United States as amicus curia that the award when deposited becomes in law the property of the persons entitled to it (United States v. Dunnington, 146 U.S. 338, 351, 13 S.Ct. 79, 36 L.Ed. 996) ; that the county upon application to the court at any time thereafter could have received the amount required to redeem the tax sale certificate, and its delay should not enlarge its rights. To this it may be answered, first, that the condemnor, having paid into court just compensation for the land, has performed its full duty and is not concerned as to whom or when the court distributes it; the condemnor is not even entitled to notice of the order of distribution. See United States v. Dunnington, 146 U.S. 338, 351-353, 13 S.Ct. 79, 36 L.Ed. 996, and cases there cited; City of St. Paul v. Certain Lands, etc., 8 Cir., 48 F.2d 805, 807. Secondly, exercise of the statutory power of redemption required payment to the county; had the former owners paid the money into court and notified the county to go afid get it, this would not have been compliance with the statute, and no reason is apparent why the deposit by the United States should be more effective. Finally, it may be noted that the Kramers could have applied to the court to withdraw the deposit [see United States v. Certain Lands, etc., D.C.E.D.N.Y., 39 F. Supp. 91, 99] or part thereof, and could thereby have obtained the funds with which to redeem the tax sale certificate before expiration of the period of redemption. If equities between the parties are open to consideration we think they lie with the county, which was privileged to remain quiescent until its inchoate title became absolute unless payment was made or tendered. As this did not occur, we think the tax deed was effective to carry the right to the entire award. Accordingly the order is reversed and the cause remanded for further proceedings in conformity with this opinion. See Utter v. Richmond, 112 N.Y. 610," } ]

[ { "docid": "23410017", "title": "", "text": "Given the circumstances, any argument that the district court abused its discretion in refusing to consider the transcripts is frivolous. B. We turn to Everroad’s claims for age and gender discrimination, and for retaliation. For each of the discrimination claims, Everroard lacks direct evidence of discrimination and relies on the McDonnell Douglas burden-shifting analysis to make her case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir.2008). To make out a prima facie claim under McDonnell Douglas, a plaintiff must demonstrate that (1) she is a member of a protected class, (2) she met her employer’s legitimate job expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside of the protected class received more favorable treatment. Lucas, 539 F.3d at 666. If the plaintiff is able to establish a prima facie case of discrimination, the burden then shifts to the employer to offer a non-discriminatory reason for the adverse employment action. If the employer does so, the burden shifts back to the plaintiff to submit evidence demonstrating that the employer’s explanation is a pretext. Gates v. Caterpillar, Inc. 513 F.3d 680, 690 (7th Cir.2008). For each claim, the parties agree that Everroad can establish that she is a member of a protected class because she is female and over forty years of age, and that she suffered an adverse employment action when she was terminated. They disagree on the state of the record for the other two parts of the analysis. Everroad argues that the evidence is undisputed that she was meeting her employer’s legitimate job expectations and that similarly situated male and younger employers were treated more favorably. Scott Truck, of course, contends that Everroad was not meeting the company’s legitimate expectations because she was insubordinate. The company also contends that Everroad has failed to identify any male employees or younger employees who were similarly situated because no one else had engaged in insubordination. Normally, we first determine whether a plaintiff has established a prima facie" } ]

[ { "docid": "19029583", "title": "", "text": "she belongs to a protected class. Id. (citing Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th-Cir.2013)). Under the indirect method, plaintiffs must first make out a prima facie case of discrimination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which has four elements: they must demonstrate that (1) they are members of a protected class; (2) they were meeting their employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) at least one similarly situated employee, not in their protected class, was treated more favorably. Rodgers v. White, 657 F.3d 511, 517 (7th Cir.2011). If the plaintiffs establish a prima facie case, then “the burden shifts to [Casino Queen] to articulate a legitimate, nondiscriminatory reason for [the adverse employment action] which if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Petts v. Rockledge Furniture, LLC, 584 F.8d 715, 725 (7th Cir.2008) (citation and internal quotation marks omitted). If Casino Queen meets this burden, the burden returns to the plaintiffs to prove, by a preponderance of the evidence, that the proffered reason is a pretext for race discrimination. Id. While the indirect approach is often called a “burden shifting” method, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiffs] remains at all times with the plaintiffs].” Contreras v. Suncast Corp., 237 F.3d 756, 760 (7th Cir.2001) (citation omitted). Casino Queen concedes the first two elements under the indirect method — membership in a protected class and meeting its legitimate expectations. We proceed now to the third and fourth elements. Because we ultimately conclude that plaintiffs can avoid summary judgment based on the indirect method of proof, we need not address their arguments under the direct method, although they remain free to offer all relevant evidence at trial. i. Adverse employment action The district court concluded that the plaintiffs did not prove that they suffered an adverse employment action. Adverse employment actions “generally fall into three categories: (1)" }, { "docid": "11131212", "title": "", "text": "ADA Discrimination Claims (Counts I and III) Pu claims that Columbia discriminated against her in violation of the ADEA and ADA by unfairly disciplining her and ultimately terminating her employment. The ADEA prohibits employers from discriminating against employees who are 40 years old or older because of their age. 29 U.S.C. §§ 623(a)(1); 631(a). The ADA prohibits discrimination by an employer against an employee because of a disability. 42 U.S.C. § 12112(a). A plaintiff claiming ADEA or ADA discrimination can prove her case under the direct or indirect method of proof. See Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657 F.3d 595, 601 (7th Cir.2011); Van Antwerp v. City of Peoria, 627 F.3d 295, 297 (7th Cir.2010). Pu proceeds under the indirect method. Under McDonnell Douglas Corporation v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff relying on the indirect method at summary judgment must show that (1)' she was a member of a protected class, (2) she was meeting her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside of her protected class were treated more favorably. Fleishman v. Continental Cas. Co., 698 F.3d 598, 609 (7th Cir.2012); Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.2006). If the plaintiff makes this showing, the burden shifts to the defendant to provide a legitimate nondiscriminatory explanation for the termination. Fleishman, 698 F.3d at 609. The burden then shifts back to the plaintiff who must raise a question of fact regarding whether her termination was pretextual. Id. Columbia argues that Pu failed to meet her prima facie burden because Pu cannot show that she was meeting Columbia’s legitimate expectations and she failed to identify other similarly situated employees outside of her protected class who were treated more favorably. A. Whether Pu Was Meeting Columbia’s Legitimate Expectations Pu must establish that she was meeting Columbia’s legitimate expectations at the time of the alleged discriminatory acts. See Naik v. Boehringer Ingelheim Pharm., Inc., 627 F.3d 596, 600 (7th Cir.2010). A court’s inquiry into whether" }, { "docid": "22944140", "title": "", "text": "and that the company used poor job performance as a pretext to terminate her, because she is an older woman, in violation of Title VII and the ADEA. Title VII makes it unlawful for employers to terminate employees because of their sex, see 42 U.S.C. § 2000e-2(a)(1), and the ADEA prohibits employers from terminating employees on the basis of age. See 29 U.S.C. § 623(a). Because Peele presents no direct evidence of discrimination, her Title VII and ADEA claims proceed under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir.2001). Under McDonnell Douglas, a plaintiff establishes a prima facie case of sex or age discrimination if she demonstrates, by a preponderance of the evidence, that: (1) she is a member of a protected class; (2) at the time of termination, she was meeting her employer’s legitimate employment expectations; (3) in spite of meeting the legitimate employment expectations of her employer, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated male or younger employees. See, e.g., Markel v. Bd. of Regents of Univ. of Wisconsin Sys., 276 F.3d 906, 911 (7th Cir.2002); Bennington v. Caterpillar, Inc., 275 F.3d 654, 659 (7th Cir.2001). Once the plaintiff establishes a prima facie case of sex or age discrimination, the employer, to avoid liability, must then produce a legitimate, nondiscriminatory reason for the employee’s termination. See, e.g., Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009 (7th Cir.2000). If the employer offers a legitimate, nondiscriminatory explanation for the termination, the plaintiff must then rebut that explanation by presenting evidence sufficient to enable a trier of fact to find that the employer’s proffered explanation is pretextual. Id. Pretext “means a dishonest explanation, a lie rather than an oddity or an error.” Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir.2000). A plaintiff does not reach the pretext stage, however, unless she first establishes a prima facie case of discrimination. See, e.g., Coco" }, { "docid": "22047764", "title": "", "text": "there is no need to evaluate her discrimination claims under the direct method. A. The McDonnell Douglas Framework Under the indirect method, the plaintiff carries “the initial burden under the statute of establishing a prima facie case of ... discrimination.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. To establish a prima facie case of discrimination a plaintiff must offer evidence that: “(1) she is a member of a protected class, (2) her job performance met [the employer’s] legitimate expectations, (3) she suffered an adverse employment action, and (4) another similarly situated individual who was not in the protected class was treated more favorably than the plaintiff.” Burks v. Wisconsin Dep’t of Transportation, 464 F.3d 744, 750-51 (7th Cir.2006). Once a prima facie case is established, a presumption of discrimination is triggered. “The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason” for its action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see Burks, 464 F.3d at 751. When the employer does so, the burden shifts back to the plaintiff, who must present evidence that the stated reason is a “pretext,” which in turn permits an inference of unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817; see Burks, 464 F.3d at 751. The Postal Service concedes for purposes of summary judgment that Coleman has satisfied the first three elements of her prima facie case: (1) she is a member of two protected classes (race and sex); (2) her job performance was satisfactory; and (3) the Postal Service subjected her to two adverse employment actions (placement on emergency off-duty status and then termination). The Postal Service disputes the fourth element, arguing that the white, male co-workers Coleman identified as receiving more favorable treatment were not similarly situated as a matter of law. The Postal Service has also offered a non-discriminatory reason for terminating Coleman — it claims she violated its code of conduct — but Coleman contends that this reason is pretextual. B. Similarly Situated Co-workers The similarly-situated analysis calls for a “flexible, common-sense” examination of all relevant factors. Henry v." }, { "docid": "6013710", "title": "", "text": "this burden of production, the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretex-tual. Id. The parties do not dispute that elements (1) and (3) of the prima facie test were met. Thus, in determining whether Curry established a prima facie case, we need consider only whether she was meeting Menard’s legitimate expectations and whether similarly situated non-black employees received more favorable treatment. Menard maintains that Curry was not meeting its legitimate performance expectations because she had accumulated three violations under the store’s progressive discipline policy. On this point, however, the facts of this case are similar to those in Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir.1999). In Flores the plaintiff, an Hispanic woman, was discharged for participating in an unlawful work stoppage. Id. at 514. Although admitting she had broken the rules, the plaintiff claimed that she had been disciplined more harshly than non-Hispanic rule-breakers. Id. at 515. The employer argued from this that the plaintiff was not fulfilling its legitimate expectations because when she was fired she was admittedly participating in the unlawful work stoppage. Id. This court reasoned, however, that such an argument fails to take into account the flexibility of the McDonnell Douglas analysis. Id. Rather, where the issue is whether the plaintiff was singled out for discipline based on a prohibited factor, it “makes little sense ... to discuss whether she was meeting her employer’s reasonable expectations.” Id.; accord Oest v. Ill. Dep’t of Corr., 240 F.3d 605, 612 n. 3 (7th Cir.2001) (“legitimate expectations” prong of the prima facie test is not necessary to the analysis, where the people judging the plaintiffs performance were the same people she accused of discriminating against her). Thus, the plaintiff in Flores did not have to show she was meeting the employer’s legitimate expectations to establish a prima facie ease of discrimination. Similarly here, although Curry admits that she violated Menard’s policy, she claims that she was disciplined more harshly than non-black employees who also violated the policy. As in Flores, therefore, it makes little sense in this context" }, { "docid": "11827862", "title": "", "text": "therefore waived, her direct-method-of-proof argument. See Local 15, Int’l Bhd. of Elec. Workers v. Exelon Corp., 495 F.3d 779, 783 (7th Cir.2007) (“‘A party waives any argument that ... if raised in the district court, it fails to develop on appeal.’ ” (quoting Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir.2002))). We therefore turn to whether Faas’s claim under the indirect method of proof can withstand summary judgment. We evaluate whether Faas has raised a genuine issue of material fact under the indirect method using the familiar burden-shifting approach outlined by McDonnell Douglas. See Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir.2007). In order to establish a prima facie case of age discrimination under the indirect method, Faas must to prove that (1) she is a member of a protected class; (2) her performance met Sears’s legitimate expectations; (3) despite her performance, she was subject to an adverse employment action; and (4) Sears treated similarly situated employees outside of her protected class more favorably. See id.; Ptasznik, 464 F.3d at 696. Assuming that Faas can successfully lay out a prima facie case, the burden then shifts to Sears to provide a legitimate, non-discriminatory reason for its decision to terminate her employment. See Barricks, 481 F.3d at 559; Ptasznik, 464 F.3d at 696. Once Sears meets this minimal threshold, Faas may attack Sears’s proffered reason as mere pretext for discrimination. See Barricks, 481 F.3d at 559; Ptasznik, 464 F.3d at 696. Where a plaintiff claims, as Faas does, that an employer’s legitimate expectations were disparately applied, the second and fourth elements of the prima facie case are closely intertwined with the pretext analysis, and the two inquiries may be merged and considered together. See, e.g., Cerutti v. BASF Corp., 349 F.3d 1055, 1064 n. 8 (7th Cir.2003); Peele v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir.2002); Curry v. Menard, 270 F.3d 473, 478 (7th Cir.2001); see also Hague v. Thompson Distribution Co., 436 F.3d 816, 823 (7th Cir.2006) (“[I]f the plaintiffs argue that they have performed satisfactorily and the employer is lying" }, { "docid": "22464637", "title": "", "text": "the remark was made almost four years prior to Ms. Oest’s termination and two years prior to her first suspension. Further, the comment was not related to the decision-making process with respect to Ms. Oest’s continued status. Although Captain Reynolds did conduct the investigation into the “nice[-]looking legs” statement, he did not make the decision to terminate her employment. He merely referred the matter to the employee review board for a hearing. Accordingly, we do not believe that Ms. Oest can sustain a charge of discrimination under the direct method. 2. We next examine whether Ms. Oest has established a triable case under the familiar indirect or burden-shifting approach. Because employers usually are “careful not to offer smoking gun remarks indicating intentional discrimination,” the burden-shifting test first elucidated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), provides a means of evaluating indirect evidence of discrimination at the summary judgment stage. Robin, 200 F.3d at 1088. Under the indirect method, the plaintiff must establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; see also Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 672 (7th Cir.2000). If the employer then offers a nondiscriminatory reason for the employment action, the plaintiff must submit evidence that such an explanation is pretextual. See Bellaver, 200 F.3d at 493. More specifically, a Title VII plaintiff establishes a prima facie case of sex discrimination by showing (1) she was a member of a protected class; (2) she was meeting her employer’s legitimate business expectations; (3) she suffered an adverse employment action; and (4) the employer treated similarly situated employees outside the class more favorably. See Simpson v. Borg-Warner Auto., Inc., 196 F.3d 873, 876 (7th Cir.1999). If the plaintiff fails to establish this prima facie case, the employer is entitled to summary judgment without the court’s even reaching the two other steps of the McDonnell Douglas analysis — the employer’s articulating a legitimate, nondiscriminatory reason for its action and the plaintiffs burden to demonstrate that the purported legitimate reason" }, { "docid": "1913980", "title": "", "text": "no direct evidence of race discrimination. Plaintiff must therefore rely on the burden-shifting method set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, Plaintiff must show that (1) she is a member of a protected class; (2) she was performing her job adequately; (3) she suffered a materially adverse employment action; and (4) others outside the protected class were treated more favorably. Gonzalez v. Ingersoll Mill. Mach. Co., 133 F.3d 1025, 1031-32 (7th Cir.1998) {citing McDonnell Douglas Corp., 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). If these elements are shown, Plaintiff raises a rebuttable presumption of discrimination. At that point, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action.” Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir.1995). If Armstrong then offers a legitimate explanation, the presumption of discrimination dissolves and the burden of persuasion shifts back to Plaintiff to prove that Armstrong’s proffered reason was pretextual. Sirvidas, 60 F.3d at 378. There is no dispute in this case that Plaintiff satisfies the first element of her prima facie case. As an African-American, she falls within a protected class. Moreover, she clearly satisfies the third element in that she was terminated. Armstrong does dispute, however, that Plaintiff can satisfy the second and fourth elements. Specifically, Armstrong disputes that Plaintiff performed her job adequately and that similarly-situated white employees were treated more favorably. As noted above, Plaintiff has offered no affirmative evidence whatsoever in this case. As a result, she has failed to offer evidence to establish that she was performing the job adequately or that similarly-situated non-African-American employees were treated more favorably. On that basis alone, the court could find that Plaintiff has failed to establish a prima facie case of race discrimination and that summary judgment is therefore proper on this claim. Yet even if Plaintiff had satisfied her prima facie case, summary judgment in favor of Armstrong would be proper because Armstrong has offered evidence of a legitimate non-discriminatory reason for its decision to" }, { "docid": "18237874", "title": "", "text": "Raymond, 442 F.3d at 608. Although Keeton has not provided her own version of the facts, we still view all of the facts asserted by Morningstar in the light most favorable to Keeton, the nonmoving party, and we draw all reasonable inferences in her favor. Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 937 (7th Cir.2003); Curran v. Kwon, 153 F.3d 481, 485-86 (7th Cir.1998). Our review of the record reveals that there is no direct evidence of discrimination or retaliation. We therefore will employ the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the burden-shifting analysis, a plaintiff must first establish a prima facie case of discrimination by demonstrating that (1) she is a member of a protected class; (2) she met her employer’s legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class received more favorable treatment. Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 477 (7th Cir.2010); Lucas v. PyraMax Bank, FSB, 539 F.3d 661, 666 (7th Cir.2008). If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to offer a nondiseriminatory reason for the adverse employment action. Everroad, 604 F.3d at 477. If the employer does so, the burden shifts back to the plaintiff to submit evidence demonstrating that the employer’s explanation is a pretext. Everroad, 604 F.3d at 477; Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir.2008). Although the question of pretext normally arises only after the plaintiff has established a prima facie case of discrimination and the employer has countered with a legitimate non-discriminatory reason for the adverse action, we may skip over the initial burden-shifting of the indirect method and focus on the question of pretext. Everroad, 604 F.3d at 478; Bodenstab v. County of Cook, 569 F.3d 651, 657 (7th Cir.2009), cert, denied, - U.S. -, 130 S.Ct. 1059,175 L.Ed.2d 884 (2010). Morningstar presented evidence of legitimate, non-discriminatory reasons for any salary differences among the Compliance Consultants. In particular," }, { "docid": "1358734", "title": "", "text": "that her replacement is white. On either ground, Zayas is a long way from being able to prove a discriminatory motive directly. See e.g., Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003) (“circumstantial evidence ... must point directly to a discriminatory reason for the employer’s action.”). Therefore, Zayas only asserts discrimination under the indirect method of proof standard. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the indirect method, Zayas must establish a prima facie case by showing: (1) she is a member of a protected group; (2) she satisfied her employer’s legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably. Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 511 (7th Cir.2012). If these elements are met, the burden shifts to the defendant to introduce a legitimate, non-discriminatory reason for the employment action. Id. On rebuttal, the plaintiff must provide evidence demonstrating that the defendant’s stated reason is pretextual. Id. at 511-12. It is undisputed that Zayas has satisfied the first and third prongs under the indirect method of proof: she is a member of a protected class, Puerto Rican and over the age of 40, and suffered an adverse employment action, termination. As for the second and fourth prongs, Zayas still lacks sufficient evidence to overcome summary judgment. Zayas points to her 2008 and 2009 satisfactory performance evaluations as proof that she met the Hospital’s legitimate job expectations. Zayas’ reliance on these evaluations is misplaced. The question is not whether she ever satisfied the Hospital’s expectations, but whether she met the Hospital’s expectations at the time she was fired. See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 545-46 (7th Cir.2002). Further, our analysis of an employer’s legitimate expectations does not merely consider whether a plaintiffs actual job performance was satisfactory — it is a much broader analysis, which allows fact-finders to consider factors such as insubordination and workplace camaraderie. See Fane v. Locke Reynolds, LLP, 480 F.3d 534," }, { "docid": "159023", "title": "", "text": "does not strike us as suspicious. When direct evidence is lacking, a plaintiff may proceed under the indirect, burden-shifting method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Pasqua v. Metro. Life Ins. Co., 101 F.3d 514, 516 (7th Cir.1996). Under McDonnell Douglas a plaintiff must initially establish a prima facie case of unlawful discrimination by a preponderance of the evidence. If she does this, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for its adverse action against the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Such a reason, if unrebutted, defeats the plaintiffs claim. However, if the plaintiff can prove by a preponderance of the evidence that the employer’s proffered explanation is a mere pretext for actual discrimination, id. at 808, 93 S.Ct. 1817, then the employer is liable for the plaintiffs injuries. To establish a prima facie case under McDonnell Douglas, the plaintiff must show: (1) that she is a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she was the object of a materially adverse employment action; and (4) that similarly-situated employees outside the protected class were treated more favorably. Id. at 802, 93 S.Ct. 1817; Gordon, 246 F.3d at 885-86. Spherion conceded the first three elements; the district court held that Sartor failed to show that any similarly-situated employee outside the protected classes was treated more favorably than she. On appeal Sartor argues for the first time that because the BDDs who were retained in Spherion’s restructuring absorbed some of her former job duties and are not in the protected class, she is not required to show that similarly-situated employees were treated more favorably, citing Bellaver v. Quanex Corp., 200 F.3d 485, 495 (7th Cir.2000). “We have long refused to consider arguments that were not presented to the district court in response to summary judgment motions.” Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir.1996) (quoting Cooper v. Lane, 969 F.2d 368, 371 (7th Cir.1992)). This court" }, { "docid": "5882956", "title": "", "text": "to find that he was disciplined because of his race. In opposing the motion, Luster relied on the indirect method of proof pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It was his initial burden to establish a prima facie case of discrimination by offering evidence tending to show that (1) he is a member of a protected class, (2) he was meeting the IDOC’s performance expectations, (3) he suffered an adverse employment action, and (4) a similarly situated co-worker who is not a member of the protected class was treated more favorably. See Winsley v. Cook County, 563 F.3d 598, 604 (7th Cir.2009); Ballance v. City of Springfield, 424 F.3d 614, 617 (7th Cir.2005). The first element is satisfied, and although the IDOC maintains that Luster was never fired because he resigned, the IDOC concedes that Luster’s suspension without pay before he resigned was an adverse employment action sufficient to satisfy the third element for purposes of summary judgment. With respect to the remaining elements of the prima facie case, the district court correctly reasoned in this case of allegedly discriminatory discipline that the second element, whether the employee was performing satisfactorily, merged into the fourth element, whether the employer treated plaintiff worse than a similarly situated co-worker. See Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 592 (7th Cir.2008); Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir.1999). Federal employment discrimination laws do not limit their protection to perfect or even good employees. They also protect employees who misbehave or perform poorly. E.g., Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir.2011) (“perfection is not a requirement for protection under Title VII”). Under Title VII of the Civil Rights Act of 1964, an employer cannot intentionally discipline poor employees more severely on the basis of race, sex, religion, or national origin. A plaintiff trying to meet this element by showing that comparators outside the protected group were “similarly situated” need not demonstrate complete identity. What is required is “substantial similarity” given all relevant factors in" }, { "docid": "6013709", "title": "", "text": "any direct evidence of discrimination. Although Curry testified to “inappropriate” racial remarks made by Horvath, those remarks, while made in Curry’s presence, were not made to or about her and were not related to the employment decision in question. See Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.2001) (stray remarks of a derogatory character do not show direct discrimination unless they are related to the adverse employment action). Thus, to survive summary judgment Curry had to prove a prima facie case of discrimination under the burden-shifting method, which required her to show that: (1) she belongs to a protected class, (2) she performed her job according to Menard’s legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees outside the protected class were treated more favorably. Gordon, 246 F.3d at 885-86. Establishing a prima facie case creates a presumption of discrimination and shifts the burden to the employer to produce evidence of a legitimate, race-neutral reason for the adverse action. Id. at 886. If the employer meets this burden of production, the plaintiff then has the burden to show that the stated nondiscriminatory reason is pretex-tual. Id. The parties do not dispute that elements (1) and (3) of the prima facie test were met. Thus, in determining whether Curry established a prima facie case, we need consider only whether she was meeting Menard’s legitimate expectations and whether similarly situated non-black employees received more favorable treatment. Menard maintains that Curry was not meeting its legitimate performance expectations because she had accumulated three violations under the store’s progressive discipline policy. On this point, however, the facts of this case are similar to those in Flores v. Preferred Technical Group, 182 F.3d 512, 515 (7th Cir.1999). In Flores the plaintiff, an Hispanic woman, was discharged for participating in an unlawful work stoppage. Id. at 514. Although admitting she had broken the rules, the plaintiff claimed that she had been disciplined more harshly than non-Hispanic rule-breakers. Id. at 515. The employer argued from this that the plaintiff was not fulfilling its legitimate expectations because when she" }, { "docid": "23514717", "title": "", "text": "93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish a discrimination claim by the indirect method, Ptasznik has the initial burden of proving a prima facie case that (1) she is a member of a protected class, (2) she performed reasonably on the job in accord with her employers’ legitimate expectations, (3) despite her reasonable performance, she was subjected to an adverse employment action, and (4) similarly situated employees outside of her protected class were treated more favorably by the employer. Id.; Rozskowiak v. Vill. of Arlington Heights, 415 F.3d 608, 614 (7th Cir.2005). If Ptasznik’s evidence is sufficient for a jury to find a prima facie case of unlawful discrimination, then the burden shifts to the defendants to rebut the prima facie case by articulating a legitimate, nondiscriminatory reason for terminating her. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Even if Ptasznik establishes conclusively that the decision to fire her was motivated in part by discrimination, the defendants may avoid liability by demonstrating that they would have made the same decision despite the alleged unlawful motive. Gleason v. Mesirow Fin. Inc., 118 F.3d 1134, 1140 (7th Cir.1997) (citing Geier v. Medtronic, Inc., 99 F.3d 238, 241 (7th Cir.1996)). Once the defendants articulate a legitimate reason for termination, the burden then shifts back to Ptasznik to prove that the stated reason for her termination is pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. “A pretext ... is a deliberate falsehood.” Forrester v. Rauland-Borg Corp., 453 F.3d 416, 419 (7th Cir.2006); Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000) (“[PJretext means a dishonest explanation, a lie rather than an oddity or an error.”). “The focus of a pretext inquiry is whether the employer’s stated reason was honest, not whether it was accurate, wise or well-considered.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir.2000). Pretext is not necessarily established merely when the plaintiff demonstrates the employer’s reason was mistaken. An employer’s mistaken belief that the plaintiffs conduct merited termination is not unlawful, so long as the belief was honestly held. See" }, { "docid": "22280258", "title": "", "text": "defendants on all these claims. At issue in this appeal is the defendants’ alleged discrimination based on race and disability, as well as their alleged retaliation against Ms. Burks based on her complaints of racial and disability discrimination. II DISCUSSION We review the district court’s grant of summary judgment de novo, examining the facts in a light most favorable to Ms. Burks as the non-moving party and drawing all reasonable inferences in her favor. See Haywood v. Lucent Techs., 323 F.3d 524, 529 (7th Cir.2003). A. Discrimination Based on Race Ms. Burks alleges racial discrimination in violation of Title VII and the Fourteenth Amendment. Our analysis is the same for both claims. In her response to the defendants’ motion for summary judgment, Ms. Burks claims that she has demonstrated racial discrimination under the indirect method, thus establishing a prima facie case of discrimination under the familiar burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Plair v. E.J. Brack & Sons, Inc., 105 F.3d 343, 347 (7th Cir.1997). To do so, she must show that: (1) she is a member of a protected class, (2) her job performance met WDOT’s legitimate expectations, (3) she suffered an adverse employment action, and (4) another similarly situated individual who was not in the pro tected class was treated more favorably than the plaintiff. See id. If the plaintiff establishes a pri-ma facie case, a presumption of discrimination is raised, and the burden shifts to the employer to proffer a legitimate, nondiscriminatory reason for its action. Id. (“At this stage, the reason need only be facially nondiscriminatory.”). If the employer meets this burden, the burden shifts back to the plaintiff to demonstrate that the employer’s proffered reason is pretextual. See Scaife v. Cook County, 446 F.3d 735, 739-40 (7th Cir.2006). 1. Prima Facie Case In this case, it is not disputed that Ms. Burks is a member of a protected class or that she suffered an adverse employment action when she was terminated. We therefore shall discuss only the two remaining prongs. a. similarly" }, { "docid": "17599577", "title": "", "text": "indirect, burden-shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonnell Douglas approach requires that a plaintiff first establish certain prima facie elements suggesting race discrimination. To successfully set forth a prima facie case of racial discrimination, Fane must show that: 1) she is a member of a protected class; 2) she was meeting her employer’s legitimate performance expectations; 3) she suffered an adverse employment action; and 4) other similarly situated employees who were not members of the protected class were treated more favorably. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We generally have applied the same prima facie requirements to both Title VII and § 1981 discrimination claims. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403 (7th Cir.2007). If Fane succeeds in establishing a prima facie case, the burden of production shifts to Locke Reynolds to offer a permissible, nondiscriminatory reason for the adverse employment action. Id. If Locke Reynolds meets this burden, Fane must demonstrate that the firm’s purported reasons are a pretext for discrimination or that the decision was tainted by impermissible, race-based motives.. Id. at 143, 120 S.Ct. 2097. “ ‘The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). A. Unequal Pay and Workload Claims The district court held that Fane’s workload and pay claims were barred because they were not set forth in her EEOC charge. See Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994) (noting that claims must generally be set forth in an EEOC charge to give notice to the party charged with discrimination, to per mit the agency to investigate the charge, and to facilitate a resolution if possible). Whether Fane exhausted her Title VII claims is immaterial, however, because Fane also sued under § 1981," }, { "docid": "18039761", "title": "", "text": "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of .employment” on the basis of race. 42 U.S.C. § 2000e&emdash;2(a)(1). Generally speaking, there are two ways of proving such a claim: the “direct” method of proof and the “indirect” method of proof. See Naficy v. Ill. Dep’t of Human Servs., 697 F.3d 504, 509 (7th Cir.2012). But cf. Coleman, 667 F.3d at 863 (Wood, J., concurring) (arguing that the direct/indirect distinction is unnecessarily complicated and that “the time has come to collapse all these tests into one”). Under the direct method, a plaintiff must provide either direct or circumstantial evidence that the employer had a discriminatory motivation. Naficy, 697 F.3d at 509. And under the indirect method, a plaintiff must satisfy the well-worn requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Naficy, 697 F.3d at 509. Collins employs both methods here, and we will start by addressing the indirect method. Under the indirect method, a plaintiff must first establish a prima facie case by providing evidence “that (1) she is a member of the protected class; (2) she met her employees legitimate job expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside of the protected class were treated more favorably.” Id. at 511. If she does so, then the burden shifts to the employer “to intro- duee a legitimate, nondiscriminatory reason for the employment action.” Id. If the employer meets that burden of production, then the burden shifts back to the plaintiff to provide evidence that the employer’s reason was pretextual. Id. at 511-12. “Normally a court should first determine if a plaintiff has established a prima facie case before subjecting the employer to the pretext inquiry.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006). But where, as here, “an employer has cited performance issues as the justification for its adverse action, the performance element of the prima facie case cannot be separated from” the pretext inquiry. Duncan v. Fleetwood Motor Homes of Ind., Inc., 518 F.3d 486," }, { "docid": "22600454", "title": "", "text": "since Ajayi never argued for the amendment. But neither did the district court abuse its discretion in allowing the amendment and considering the termination claim under § 1981. Because we must address the merits of Ajayi’s termination claim under § 1981, we will assume arguendo that her Title VII claim falls within the scope of her EEOC charge. In sum, Ajayi’s opening brief limited the number of actions she alleges were motivated by racial discrimination. And one of the four remaining actions identified in her opening brief is outside the scope of her EEOC charge, which leaves only the demotion, failure-to-promote, and termination claims as viable avenues of attack on appeal. We address each in turn. A. Demotion Because Ajayi has no direct evidence of race discrimination, she must satisfy the McDonnell Douglas burden-shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 98 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this approach, Ajayi must first establish a prima facie case of discrimination, which then shifts the burden of proof to Aramark to provide some legitimate, nondiscriminatory reason for the challenged employment decisions. Id. at 802, 93 S.Ct. 1817. If Aramark does so, Ajayi retains the ultimate burden to show that the proffered reasons are pretextual. See Schuster, 327 F.3d at 574. Ajayi can’t establish a prima facie case of discrimination on her demotion claim. She needs to show that (1) she is a member of a protected class; (2) she was qualified for the job or was meeting Ara-mark’s legitimate expectations; (3) she suffered an adverse employment action; and (4) Aramark treated similarly situated employees outside of the protected class more favorably. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1035 (7th Cir.1999). Although, as the district court noted, a demotion is a paradigm adverse employment action, see Traylor v. Brown, 295 F.3d 783, 788 (7th Cir.2002), Ajayi cannot establish that she. suffered an adverse employment action here because she, in fact, never was demoted. Around February 9, 2000, Aramark gave Ajayi a memorandum stating that her position was being eliminated and that she would be demoted two weeks" }, { "docid": "19029582", "title": "", "text": "through the direct or indirect method of proof (or both). Mullin, 732 F.3d at 776. Plaintiffs here proceed under both methods. Under the direct method, plaintiffs must provide either direct evidence or circumstantial evidence that supports an inference of intentional discrimination. Id. Direct evidence requires an admission of discriminatory intent, i.e., “smoking-gun” evidence. Id. Circumstantial evidence typically includes “(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; and (3) evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class and the employer’s reason is a pretext for discrimination.” Id. (quoting Sun v. Bd. ofTrs. ofUniv. of III., 473 F.3d 799, 812 (7th Cir.2007)). Ultimately, a plaintiff facing summary judgment must produce sufficient evidence that a rational jury could conclude that the employer took the adverse action against the plaintiff because she belongs to a protected class. Id. (citing Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th-Cir.2013)). Under the indirect method, plaintiffs must first make out a prima facie case of discrimination, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which has four elements: they must demonstrate that (1) they are members of a protected class; (2) they were meeting their employer’s legitimate expectations; (3) they suffered an adverse employment action; and (4) at least one similarly situated employee, not in their protected class, was treated more favorably. Rodgers v. White, 657 F.3d 511, 517 (7th Cir.2011). If the plaintiffs establish a prima facie case, then “the burden shifts to [Casino Queen] to articulate a legitimate, nondiscriminatory reason for [the adverse employment action] which if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Petts v. Rockledge Furniture, LLC, 584 F.8d 715, 725 (7th Cir.2008) (citation and internal quotation marks omitted). If Casino" }, { "docid": "16761128", "title": "", "text": "VII makes it an unlawful employment practice for an employer “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex....” 42 U.S.C. § 2000e-2(a)(1). As Peirick seeks to prove her case by the indirect method of proof, we analyze her claim under the burden-shifting approach announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff must first make out a prima facie case of gender discrimination. Peirick may do so by showing: (1) she is a member of the protected class, (2) she met her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) her employer treated similarly situated male employees more favorably. Barricks v. Eli Lilly & Co., 481 F.3d 556, 559 (7th Cir.2007) (citing Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir.2006)). At that point, the employer must offer a legitimate nondiscriminatory reason for the adverse employment action, which the employee may rebut by showing that the reason is a mere pretext for discrimination. Id. The only issues on appeal are whether Peirick satisfied the second and fourth elements of the prima facie case, and whether she rebutted the defendants’ proffered nondiscriminatory reason for the adverse employment action. Where, as here, an employee claims that she “performed satisfactorily and the employer is lying about the business expectations required for the position, the second prong and the pretext question seemingly merge because the issue is the same— whether the employer is lying.” Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir.2006); see Coco v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir.1997) (“The defendant’s expectations are not legitimate if they are phony; so if they are argued to be phony, the issue of legitimate expectations and the issue of pretext seem to merge”)- Therefore, we begin with the fourth prong of the prima facie case. 1. Similarly Situated Individuals Were Treated" } ]

[ { "docid": "22745656", "title": "", "text": "v. Madigan, 503 U. S. 140, 150-151 (1992). The PLRA strengthened this exhaustion provision in several ways. Exhaustion is no longer left to the discretion of the district court, but is mandatory. See Booth v. Churner, 532 U. S. 731, 739 (2001). Prisoners must now exhaust all “available” remedies, not just those that meet federal standards. Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies even where the relief sought—monetary damages—cannot be granted by the administrative process. Id., at 734. Finally, exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983. Nussle, supra, at 524. B California has a grievance system for prisoners who seek to challenge their conditions of confinement. To initiate the process, an inmate must fill out a simple form, Dept, of Corrections, Inmate/Parolee Appeal Form, CDC 602 (12/87) (hereinafter Form 602), that is made “readily available to all inmates.” Cal. Code Regs., tit. 15, § 3084.1(c) (2004). The inmate must fill out two parts of the form: part A, which is labeled “Describe Problem,” and part B, which is labeled “Action Requested.” Then, as explained on Form 602 itself, the prisoner “must first informally seek relief through discussion with the appropriate staff member.” App. 40-41. The staff member fills in part C of Form 602 under the heading “Staff Response” and then returns the form to the inmate. If the prisoner is dissatisfied with the result of the informal review, or if informal review is waived by the State, the inmate may pursue a three-step review process. See §§3084.5(b)-(d). Although California labels this “formal” review (apparently to distinguish this process from the prior step), the three-step process is relatively simple. At the first level, the prisoner must fill in part D of Form 602, which states: “If you are dissatisfied, explain below.” Id., at 40. The inmate then must submit the form, together with a few other documents, to the appeals coordinator within 15 working days—three weeks—of the action taken. § 3084.6(c). This level may be bypassed by the appeals coordinator in" } ]

[ { "docid": "23193729", "title": "", "text": "interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.” Id. However, these restrictions may be imposed only in 120-day increments. Before these restrictions can be reimposed, the warden must conduct the risk assessment afresh. United States v. Johnson, 223 F.3d 665, 672 (7th Cir. 2000), petition for cert. filed, (U.S. Feb. 9, 2001) (No. 00-8520); 28 C.F.R. § 501.3(c). The limitations in these regulations imply that the Bureau of Prisons could not assign a prisoner directly upon his admission to the federal prison system to spend the rest of his life in the control unit without the possibility of reconsideration. The regulation requiring the bureau to review an inmate’s’ control unit status “at least once every 60 to 90 days ... to determine the inmate’s readiness for release from the [Control] Unit,” 28 C.F.R. § 541.49(d), points in the same direction. Johnson, 223 F.3d at 672. These limitations also suggest that the administrative measures are subject to challenge by the prisoner. However, under the PLRA, “no action shall be brought” by a prisoner under any federal law until the prisoner has exhausted “administrative remedies as are available.” 28 U.S.C. § 1997e(a). Under the BOP regulations, an inmate must first complete an informal resolution of his complaint. See 28 C.F.R. § 542.13. The regulations permit an inmate to then “seek formal review [from the Warden] of an issue which relates to any aspect of [his] confinement.” Id. § 542.10; see id. § 542.14. An inmate who is not satisfied with the Warden’s response may appeal his complaint to the BOP’s Regional Director. See id. § 542.15(a). “Finally, the inmate may appeal his case to the General Counsel in the Central Office of the Bureau of Prisons, which is the ‘final administrative appeal.’ ” Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (quoting 28 C.F.R. § 542.15(a) (1997)), overruled on other grounds by Booth, 531 U.S. 956, 121 S.Ct. 1819, 149 L.Ed.2d 958. III. CHALLENGES TO THE SAMS The Attorney General maintains" }, { "docid": "16272840", "title": "", "text": "process before filing suit. This process is laid out in the Code of Federal Regulations, as well as a parallel Bureau of Prisons (“BOP”) Program Statement. See generally 28 C.F.R. § 542 (2004); BOP Program Statement 1330.13 (2002). First, an inmate usually must attempt to informally resolve his or her concerns with prison staff. 28 C.F.R. § 542.13. If this attempt fails, an inmate must submit a formal written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred. Id. § 542.14(a). If the Request does not provide satisfactory relief, an inmate must appeal the resolution of his or her Request to the appropriate BOP Regional Director within twenty days. Id. § 542.15(a). Finally, if an inmate disagrees with the Regional Director’s decision, the inmate must appeal the decision to the BOP’s General Counsel within thirty days. Id. § 542.15(a). We have held that if an inmate does not comply with the time limits laid out in 28 C.F.R. § 542, he or she has not properly exhausted his or her administrative remedies. As we noted in Ross, the PLRA ... contains a procedural default concept within its exhaustion requirement. A prison procedure that is procedurally barred and thus is unavailable to a prisoner is not thereby considered exhausted. Regardless of whether a prisoner goes through the formality of submitting a time-barred grievance, he may not successfully argue that he has exhausted his administrative remedies by, in essence, failing to employ them. 365 F.3d at 1186 (citations, quotations omitted). In this case, Plaintiff failed to exhaust his administrative remedies regarding his alleged exposure to secondhand smoke because he did not submit a written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred, as required by 28 C.F.R. § 542.14(a). Plain tiff first filed such a Request regarding his alleged exposure to cigarette smoke on September 4, 2001. This Request was necessarily filed more than twenty days after the date on which the basis for the Request arose because Plaintiff was not incarcerated at FCI El" }, { "docid": "17366286", "title": "", "text": "signs the response. Id., §§ 542.15(a), 542.18. If not satisfied with the regional director’s response, the inmate may appeal to the general counsel within 30 calendar days of the date the regional director signs the response. Id., § 542.15(a). Once an appeal is filed, the regional director must respond within 30 calendar days and the general counsel within 40 calendar days, and if the time to respond is insufficient, it may be extended once by 20 days at the institution level, 30 days at the regional level, and 20 days at the central office level. Id., § 542.18. Upon the inmate’s showing of a valid reason for delay, all the deadlines may be extended. Id., § 542.15(a). Under this latter provision, therefore, the time for achieving a resolution under the PLRA could be considerably longer than 140 days. In some instances, it is certainly possible that a full three years could pass while an inmate exhausts his administrative remedies. Cf. Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004) (“[EJxhaustion may be achieved in situations where prison officials fail to timely advance the inmate’s grievance or otherwise prevent him from seeking his administrative remedies.... ”). Defendants’ assertion that there is a statutory maximum time period beyond which equitable tolling will not save a claim thus finds no support in the applicable regulations, and certainly not in juxtaposition to the allegation in the complaint that Gonzalez’s administrative remedies were not exhausted until August 8, 2002. As noted, the Ninth, Fifth, Seventh, and Sixth Circuits have all adopted the rule that equitable tolling is applicable to the time period during which a prisoner-plaintiff is exhausting his administrative remedies pursuant to the PLRA. See Brown, 422 F.3d at 942-43; Clifford, 298 F.3d at 332; Johnson, 272 F.3d at 522; Brown, 209 F.3d at 596. “The ‘catch-22’ ... is self-evident: the prisoner who files suit ... prior to exhausting administrative remedies risks dismissal based upon § 1997e; whereas the prisoner who waits to exhaust his administrative remedies risks dismissal based upon untimeliness.” Johnson, 272 F.3d at 522. Indeed, the exhaustion requirement in some circumstances" }, { "docid": "19059659", "title": "", "text": "had lawfully obtained, rather than plaintiffs who alleged the government unlawfully took their money. See, e.g., Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 599, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (holding plaintiffs do not have standing to assert “their claim ... that, having paid lawfully collected taxes into the Federal Treasury at some point, they have a continuing, legally cognizable interest in ensuring that those funds are not used by the Government in a way that violates the Constitution”). The defendants next argue DeBrew failed to exhaust the administrative remedies available to him before he filed suit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). See Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”). The district court dismissed the claim on this ground. DeBrew, 847 F.Supp.2d at 108-10. The BoP has established a four-part process for resolving an inmate’s grievance. First, the inmate must “present an issue of concern informally to staff.” 28 C.F.R. § 542.13(a). Second, if the issue is not resolved informally, then the inmate may submit to the Warden “a formal written Administrative Remedy Request.” Id. § 542.14(a). Third, “An inmate who is not satisfied with the Warden’s response may submit an Appeal” to the Regional Director “within 20 calendar days of the date the Warden signed the response.” Id. § 542.15(a). The inmate must attach a copy of the form he submitted to the Warden and a copy of the Warden’s response. Id. § 542.15(b)(1). Fourth, “An inmate who is not satisfied with the Regional Director’s response may submit an Appeal ... to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” Id. § 542.15(a). The inmate must attach a copy of the forms he submitted to the Warden and the Regional Director and a copy of their responses. Id. § 542.15(b)(1). DeBrew completed the first three steps in this four-part process by presenting" }, { "docid": "2017472", "title": "", "text": "requires full exhaustion and affords no futility waivers are inapplicable to this plaintiffs petition. (2) Judicially Created Exhaustion Requirements Federal prisoners are required to exhaust administrative remedies before filing a habeas corpus petition under 28 U.S.C. § 2241. Little v. Hopkins, 638 F.2d 953, 953-954 (6th Cir.1981) (per cu-riam). Only after a federal prisoner seeking § 2241 relief has sought and exhausted administrative remedies pursuant. to 28 C.F.R. §§ 542.10-16 (1997) (and not pursuant to PLRA provision § 1997e(a)) may the prisoner then seek § 2241 judicial review.. United States v. Oglesby, 52 Fed.Appx. 712, 714, 2002 WL 31770320 *2 (6th Cir.2002) (citing United States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir.1996)). The exhaustion of administrative remedies procedure required of a § 2241 petitioner is not a statutory (PLRA) requirement, but instead, is a wholly judicially created requirement. See Wesley v. Lamanna, 27 Fed.Appx. 438, 2001 WL 1450759 (6th Cir.2001). The judicially imposed non-statutory exhaustion of Bureau of Prisons administrative remedies for a federal prisoner seeking to bring a 28 U.S.C. § 2241 petition is set out at 28 C.F.R. §§ 542.10-16 (1987). Section 542.13(a) demands that an inmate informally present his complaint to the staff, thereby providing them with an opportunity to correct the problem, before filing a request for an administrative remedy (BP-8 1/2). If the inmate cannot informally resolve his complaint, then he may file a formal written complaint (BP-9) “within fifteen (15) calendar days of the date on which the basis of the complaint occurred.” See § 542.13(b). If the inmate is not satisfied with the Warden’s response, he may appeal (BP-10) to the Regional Director, and, if not satisfied with the Regional Director’s response, the inmate may appeal (BP-11) that decision to the Office of General Counsel. See § 542.15. The judicially created administrative remedy exhaustion requirement, un like a PLRA-imposed exhaustion requirement, permits waiver of further exhaustion in the face of futility. Aron v. LaManna, 4 Fed.Appx. 232, 2001 WL 128349 (6th Cir.2001) (citing See McKart v. United" }, { "docid": "20265232", "title": "", "text": "only after he has exhausted the prison’s administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). The BOP’s Administrative Remedy Program is the means by which an inmate “seek[s] formal review of an issue relating to any aspect of his[ ] own confinement.” 28 C.F.R. § 542.10(a). Generally, “an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R. § 542.13(a). If an informal resolution is not achieved, the inmate may submit a formal written administrative remedy request. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden’s response at this first level of the process, he “may submit an [ajppeal to the Regional Director,” and if he is satisfied with the Regional Director’s response, he “may submit an [a]ppeal ... to the General Counsel” at BOP’s central office. 28 C.F.R. § 542.15(a) According to defendants, plaintiff “filed an administrative remedy request, # 566839-F1, at the institutional level regarding his request to be given a grade one position and back pay for fifteen months,” but has not “file[d] at the regional and central office levels.” Defs.’ Mem., Ex. A (Plumley Deck) ¶ 4. Plaintiff correctly notes that exhaustion of administrative remedies is an affirmative defense, see Pl.’s Opp’n at 8, such that he is not required to allege exhaustion in his complaint. See Jones, 549 U.S. at 215-16, 127 S.Ct. 910. He appears instead to assert that further pursuit of an administrative remedy would be futile. See Pl.’s Opp’n at 8 (“Plaintiff exhaust remedy to the warden level knowing that at the known response that rebutt [sic] from informal resolution was just countless[ ].”). “Even if an inmate believes that seeking administrative relief from the prison would be futile and even if the grievance system cannot offer the particular form of relief sought, the prisoner nevertheless must exhaust the .available administrative process.” Kaemmerling, 553 F.3d at 675 (citing Booth, 532 U.S. at 739, 741 & n. 6, 121 S.Ct. 1819). A matter involving" }, { "docid": "16272839", "title": "", "text": "are exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). As we explained in Jemigan, “[e]ven where the ‘available’ remedies would appear to be futile at providing the kind of remedy sought, the prisoner must exhaust the administrative remedies available.” 304 F.3d at 1032 (citing Booth v. Churner, 532 U.S. 731, 740, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Moreover, we have held that “the PLRA contains a total exhaustion requirement, and ... the presence of unexhausted claims in [prisoner's complaint require[s][a] district court to dismiss his [or her] action in its entirety without prejudice.” Ross v. County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir.2004); see also Graves v. Norris, 218 F.3d 884, 885 (8th Cir.2000) (per curiam) (“When multiple prison condition claims have been joined ... § 1997e(a) requires that all available prison grievance remedies must be exhausted as to all of the claims.”). To exhaust his or her administrative remedies, an inmate in a federal prison must complete a four-step process before filing suit. This process is laid out in the Code of Federal Regulations, as well as a parallel Bureau of Prisons (“BOP”) Program Statement. See generally 28 C.F.R. § 542 (2004); BOP Program Statement 1330.13 (2002). First, an inmate usually must attempt to informally resolve his or her concerns with prison staff. 28 C.F.R. § 542.13. If this attempt fails, an inmate must submit a formal written Administrative Remedy Request within twenty days of the date on which the basis for the Request occurred. Id. § 542.14(a). If the Request does not provide satisfactory relief, an inmate must appeal the resolution of his or her Request to the appropriate BOP Regional Director within twenty days. Id. § 542.15(a). Finally, if an inmate disagrees with the Regional Director’s decision, the inmate must appeal the decision to the BOP’s General Counsel within thirty days. Id. § 542.15(a). We have held that if an inmate does not comply with the time limits laid out in 28 C.F.R. § 542, he or she has not properly exhausted" }, { "docid": "22761547", "title": "", "text": "Garza’s first argument on appeal: that he was not required to exhaust BOP’s administrative remedies before filing his habeas petition because such exhaustion would be futile. B. Exhaustion of Administrative Remedies “We review the district court’s dismissal of a § 2241 habeas petition de novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir.2004). The exhaustion of available administrative remedies is a prerequisite for § 2241 habeas relief, although we recognize that the statute itself does not expressly contain such a requirement. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir.1986) (per curiam) (noting that “judicial intervention is usually deferred until administrative remedies have been exhausted”). A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that exhaustion is futile. See Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 235-36 (6th Cir. 2006) (recognizing futility exception in context of § 2241 petition); cf. Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009) (discussing futility as to 28 U.S.C. § 2254 petitions). As the district court explained, BOP regulations require a prisoner to attempt informal resolution of a complaint and, if that fails, to submit a formal request for an administrative remedy to the institution. See 28 C.F.R. §§ 542.13-14. If the inmate does not obtain a satisfactory resolution from the institution itself, he then may file a regional appeal followed by a national appeal. Id. § 542.15(a). Mr. Garza concedes that he did not exhaust the administrative remedies provided by BOP. Accordingly, unless he can demonstrate that attempting to do so would be futile, Mr. Garza cannot proceed with his § 2241 petition. Mr. Garza raises several arguments to support his contention that exhaustion is futile. These same arguments have been previously raised in other appeals by inmates from the Florence prison camp and have been rejected by various panels of this court. See Ciocchetti v. Wiley, No. 09-1336, 2009 WL 4918253 (10th Cir. Dec.22, 2009); Torres-Villa v. Davis, No. 09-1366, 2009 WL 4071834 (10th Cir. Nov.25, 2009); Bun v. Wiley, No. 09-1289, 2009 WL 3437831 (10th Cir. Oct.27, 2009); see also Lucero v." }, { "docid": "2017473", "title": "", "text": "administrative remedies for a federal prisoner seeking to bring a 28 U.S.C. § 2241 petition is set out at 28 C.F.R. §§ 542.10-16 (1987). Section 542.13(a) demands that an inmate informally present his complaint to the staff, thereby providing them with an opportunity to correct the problem, before filing a request for an administrative remedy (BP-8 1/2). If the inmate cannot informally resolve his complaint, then he may file a formal written complaint (BP-9) “within fifteen (15) calendar days of the date on which the basis of the complaint occurred.” See § 542.13(b). If the inmate is not satisfied with the Warden’s response, he may appeal (BP-10) to the Regional Director, and, if not satisfied with the Regional Director’s response, the inmate may appeal (BP-11) that decision to the Office of General Counsel. See § 542.15. The judicially created administrative remedy exhaustion requirement, un like a PLRA-imposed exhaustion requirement, permits waiver of further exhaustion in the face of futility. Aron v. LaManna, 4 Fed.Appx. 232, 2001 WL 128349 (6th Cir.2001) (citing See McKart v. United States, 395 U.S. 185, 200, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (“petitioner must show that the administrative remedy is inadequate or cannot provide the relief requested for exception to the exhaustion requirement to apply”); Goar v. Civiletti, 688 F.2d 27, 28-29 (6th Cir.1982)). Resort to administrative remedies is futile if there has been “a prior indication from the agency that it does not have jurisdiction over the matter or it has evidenced a strong position on the issue together with an unwillingness to reconsider.” James v. United States Dept. of Health and Human Services, 824 F.2d 1132, 1139 (D.C.Cir.1987). Consequently, the plaintiff must exhaust BOP administrative remedies unless he can establish futility. Futility of Exhaustion The plaintiff asserts that further exhaustion is futile and should not be cause for this court to delay deciding his claims on the merits. The plaintiff asserts futility of exhaustion because, since his BP-11 and any further appeal will ultimately be decided by the Deputy Attorney General’s Office that issued the new rule challenged here, any further appeals are" }, { "docid": "20073866", "title": "", "text": "prisoner lawsuits.”). 2. The Administrative Process Available to Federal Inmates So then, no analysis of exhaustion may be made absent an understanding of the administrative process available to state inmates. “Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The Bureau of Prisons has established a multi-tier system whereby a federal prisoner may seek formal review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10, et seq. (1997). First, “an inmate shall ... present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” Second, if an inmate at an institution is unable to informally resolve his complaint, he may file “a formal written Administrative Remedy Request [to the Warden], on the appropriate form (BP-9), [within] 20 calendar days following the date on which the basis for the Request occurred.” The warden has twenty (20) days in which to respond. An inmate who is not satisfied with the warden’s response may submit an appeal, on the appropriate form (BP-10), to the appropriate Regional Director within twenty (20) calendar days from the date the warden signed the response. An inmate who is not satisfied with the Regional Director’s response may submit an appeal, on the appropriate form (BP-11), to the General Counsel within thirty (30) calendar days from the date the Regional Director signed the response. The Regional Director has thirty (30) days and the General Counsel has forty (40) days to respond. The administrative remedies process is not considered exhausted until the fourth step of the process is complete and the appeal is denied by the General Counsel. Id. 3. Exhaustion Applied Defendants argue that all Plaintiffs have failed to exhaust" }, { "docid": "20265231", "title": "", "text": "raised in this lawsuit.” Defs.’ Mem. at 7. The PLRA exhaustion requirement is mandatory and “applies to all prisoners seeking redress for prison circumstances or occurrences.” Porter v. Nussle, 534 U.S. 516, 520, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); see Kaemmerling v. Lappin, 553 F.3d 669, 675 (D.C.Cir.2008); see also Kim v. United States, 632 F.3d 713, 718 (D.C.Cir.2011) (discussing requirement that a prisoner exhaust prison grievance procedures under the PLRA before filing a lawsuit). Exhaustion under the PLRA requires proper exhaustion, meaning that a prisoner must comply with all procedural rules, including filing deadlines, as a precondition to filing a civil suit in federal court, regardless of the relief offered through the administrative process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Typically, then, a prisoner may file a civil action concerning conditions of confinement under federal law only after he has exhausted the prison’s administrative remedies. Jackson v. District of Columbia, 254 F.3d 262, 269 (D.C.Cir.2001). The BOP’s Administrative Remedy Program is the means by which an inmate “seek[s] formal review of an issue relating to any aspect of his[ ] own confinement.” 28 C.F.R. § 542.10(a). Generally, “an inmate shall first present an issue of concern informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for Administrative Remedy.” 28 C.F.R. § 542.13(a). If an informal resolution is not achieved, the inmate may submit a formal written administrative remedy request. 28 C.F.R. § 542.14(a). If the inmate is not satisfied with the Warden’s response at this first level of the process, he “may submit an [ajppeal to the Regional Director,” and if he is satisfied with the Regional Director’s response, he “may submit an [a]ppeal ... to the General Counsel” at BOP’s central office. 28 C.F.R. § 542.15(a) According to defendants, plaintiff “filed an administrative remedy request, # 566839-F1, at the institutional level" }, { "docid": "12598950", "title": "", "text": "due process claim failed on the merits. The district court adopted the magistrate judge’s report and recommendation and denied Santiago-Lugo’s petition. II. We review de novo the. district court’s denial of a § 2241 petition, but review its factfindings for clear error. Bowers v. Keller, 651 F.3d 1277,1291 (11th Cir.2011). We are obligated to determine whether the district court had subject matter jurisdiction to consider SantiagoLugo’s § 2241 petition and whether we have jurisdiction to hear his appeal. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir.2007). This Court and the district court must have subject matter jurisdiction over a claim in order to decide it on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102,118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998) (instructing that Article III courts must first ensure that they have subject matter jurisdiction over a cause of action before addressing its merits). We start with the jurisdiction issue, asking whether a § 2241 petitioner’s failure; to exhaust administrative remedies is a jurisdictional defect. We conclude that it is not, meaning that even if Santiago-Lugo failed to exhaust his administrative remedies, we and the district court would still have jurisdiction over his claim. The district court reached the opposite conclusion by relying on five decisions from this Court. See Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.2004); Winck v. England, 327 F.3d 1296, 1306 (11th Cir.2003); Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992); United States v. Lucas, 898 F.2d 1554, 1555 (11th Cir.1990); United States v. Mitchell, 845 F.2d 951, 952 (11th Cir.1988). Of those five decisions, only our opinion in Gonzalez actually held that failure to exhaust administrative remedies deprives a court of subject matter jurisdiction over a § 2241 petition, and it only ipse dixited that “[ejxhaustion of administrative remedies is jurisdictional.” 959 F.2d at 212. And Gonzalez reached that conclusion not because § 2241 actually addressed the scope of our jurisdiction over § 2241 petitions, but because we had held in other decisions that exhaustion that was explicitly required by the governing statutes" }, { "docid": "23001476", "title": "", "text": "complaints about prison conditions. If such an administrative process is in place, then § 1997e(a) requires inmates to exhaust those procedures before bringing a prison conditions claim. On this issue, we once again agree with the reasoning in Alexander v. Hawk. In Alexander, the Eleventh Circuit concluded that the term “available” in § 1997e(a) “is used to acknowledge that not all prisons actually have administrative remedy pro^grams. Some state penal institutions may not have an administrative remedy program to address prison conditions, and thus there are no ‘available’ administrative remedies to exhaust.” Alexander, 159 F.3d at 1326-27. Here, as in Alexander and Perez, the BOP provides an administrative process “through which inmates may seek formal review of an issue which relates to any aspect of their confinement.” 28 C.F.R. § 542.10. The BOP’s administrative remedy program “applies to all inmates confined in institutions operated by the Bureau of Prisons.” Id. The program provides for a first step of “informal resolution,” 28 C.F.R. § 542.13, then appeals to the BOP Regional Director and eventually the BOP General Counsel. 28 C.F.R. § 542.15. Because Massey had this administrative procedure at his finger tips, but failed to utilize it, the district court correctly found that Massey failed to exhaust his administrative remedies under 42 U.S.C. § 1997e(a) and properly dismissed Massey’s Eighth Amendment claim. Citing dicta from our decision in Perez, Massey also pressed a unique theory at oral argument to escape the exhaustion requirement. In Perez, Judge Easter-brook gave the following hypothetical: [s]uppose [a] prisoner breaks his leg and claims delay in setting the bone is cruel and unusual punishment. If the injury has healed by the time suit begins, nothing other than damages could be a “remedy,” and if the administrative process cannot provide compensation then there is no administrative remedy to exhaust. Perez, 182 F.3d at 538. Massey argues that he exemplifies the imaginary prisoner in Judge Easterbrook’s illustration because he has already received the surgical repair of his hernia. Massey therefore contends that, since his hernia has been repaired, only money can serve as a remedy and monetary compensation" }, { "docid": "12598948", "title": "", "text": "the regional director denied on May 24. From that date, SantiagoLugo had 30 days to file a Central Office Administrative Remedy Appeal with the BOP’s Office of General Counsel. See 28 C.F.R. § 542.15(a). He asserts that he did file an appeal within that time frame, and in support of that assertion he points to a certified mail receipt indicating that the Office of General Counsel received a letter from him on June 15. But the Administrative Remedy Index, the database into which that appeal would have been entered, has no record of it. Regardless of whether Santiago-Lugo filed a Central Office Administrative Remedy Appeal with the Office of General Counsel on June 15, it is undisputed that he filed (or refiled) one on September 18, 2012. Because that September 18, 2012, appeal was filed more than 30 days after the regional director’s May 24 denial, the Central Office rejected it as untimely. The Central Office advised Santiago-Lugo that it might still consider his appeal if he provided written documentation on BOP letterhead indicating that it was not his fault that the appeal was untimely. But a unit manager at the Federal Correctional Institution at Talladega, Alabama — the prison to which Santiago-Lugo had been transferred after the initial discipline decision — would not give him the letterhead. The unit manager explained that he could not do so because Santiago-Lugo had not been a prisoner at Talladega when he first requested an administrative remedy. Santiago-Lugo filed no further appeals with the BOP. On December 10, 2012, Santiagoytugo filed a 28 U.S.C. § 2241 habeas corpus petition in the United States District Court for the Northern District of Alabama. The petition, as later amended, sought relief on due process grounds from the disciplinary sanctions that Santiago-Lugo had received because of the cell phone infraction. A magistrate judge issued a report recommending that the amended petition be denied for two reasons. First, Santiago-Lugo had failed to exhaust his administrative remedies, so the district court lacked jurisdiction to hear his petition. Second, even if the court had jurisdiction to hear his petition, Santiago-Lugo’s" }, { "docid": "23193730", "title": "", "text": "to challenge by the prisoner. However, under the PLRA, “no action shall be brought” by a prisoner under any federal law until the prisoner has exhausted “administrative remedies as are available.” 28 U.S.C. § 1997e(a). Under the BOP regulations, an inmate must first complete an informal resolution of his complaint. See 28 C.F.R. § 542.13. The regulations permit an inmate to then “seek formal review [from the Warden] of an issue which relates to any aspect of [his] confinement.” Id. § 542.10; see id. § 542.14. An inmate who is not satisfied with the Warden’s response may appeal his complaint to the BOP’s Regional Director. See id. § 542.15(a). “Finally, the inmate may appeal his case to the General Counsel in the Central Office of the Bureau of Prisons, which is the ‘final administrative appeal.’ ” Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997) (quoting 28 C.F.R. § 542.15(a) (1997)), overruled on other grounds by Booth, 531 U.S. 956, 121 S.Ct. 1819, 149 L.Ed.2d 958. III. CHALLENGES TO THE SAMS The Attorney General maintains that Mr. Yousef failed to exhaust his administrative remedies as required by the PLRA. In response, Mr. Yousef raises four closely related arguments in support of his contention that administrative remedies were effectively unavailable and therefore no exhaustion was required: (1) there were no administrative remedies against the BOP available to him because only the Attorney General may impose SAMs; (2) under our holding in Garrett, exhaustion of administrative remedies is not required; (3) Mr. Yousefs letter to the Attorney General fulfilled any remaining exhaustion requirements and (4) Mr. Yousefs informal and formal petitions and the responses thereto obviated the need to exhaust remaining administrative remedies. We consider each contention in turn. A. The Availability of Administrative Remedies First, Mr. Yousef contends that the BOP was only authorized to implement specific SAMs when directed to do so by the Attorney General. Because the BOP lacked discretion to provide remedies on its own, Mr. Yousef maintains, exhaustion was not required. We agree with the magistrate judge that the BOP regulations provide an avenue for inmates to" }, { "docid": "12598949", "title": "", "text": "it was not his fault that the appeal was untimely. But a unit manager at the Federal Correctional Institution at Talladega, Alabama — the prison to which Santiago-Lugo had been transferred after the initial discipline decision — would not give him the letterhead. The unit manager explained that he could not do so because Santiago-Lugo had not been a prisoner at Talladega when he first requested an administrative remedy. Santiago-Lugo filed no further appeals with the BOP. On December 10, 2012, Santiagoytugo filed a 28 U.S.C. § 2241 habeas corpus petition in the United States District Court for the Northern District of Alabama. The petition, as later amended, sought relief on due process grounds from the disciplinary sanctions that Santiago-Lugo had received because of the cell phone infraction. A magistrate judge issued a report recommending that the amended petition be denied for two reasons. First, Santiago-Lugo had failed to exhaust his administrative remedies, so the district court lacked jurisdiction to hear his petition. Second, even if the court had jurisdiction to hear his petition, Santiago-Lugo’s due process claim failed on the merits. The district court adopted the magistrate judge’s report and recommendation and denied Santiago-Lugo’s petition. II. We review de novo the. district court’s denial of a § 2241 petition, but review its factfindings for clear error. Bowers v. Keller, 651 F.3d 1277,1291 (11th Cir.2011). We are obligated to determine whether the district court had subject matter jurisdiction to consider SantiagoLugo’s § 2241 petition and whether we have jurisdiction to hear his appeal. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir.2007). This Court and the district court must have subject matter jurisdiction over a claim in order to decide it on the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102,118 S.Ct. 1003, 1012-16, 140 L.Ed.2d 210 (1998) (instructing that Article III courts must first ensure that they have subject matter jurisdiction over a cause of action before addressing its merits). We start with the jurisdiction issue, asking whether a § 2241 petitioner’s failure; to exhaust administrative remedies is a jurisdictional defect. We" }, { "docid": "12598951", "title": "", "text": "conclude that it is not, meaning that even if Santiago-Lugo failed to exhaust his administrative remedies, we and the district court would still have jurisdiction over his claim. The district court reached the opposite conclusion by relying on five decisions from this Court. See Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.2004); Winck v. England, 327 F.3d 1296, 1306 (11th Cir.2003); Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992); United States v. Lucas, 898 F.2d 1554, 1555 (11th Cir.1990); United States v. Mitchell, 845 F.2d 951, 952 (11th Cir.1988). Of those five decisions, only our opinion in Gonzalez actually held that failure to exhaust administrative remedies deprives a court of subject matter jurisdiction over a § 2241 petition, and it only ipse dixited that “[ejxhaustion of administrative remedies is jurisdictional.” 959 F.2d at 212. And Gonzalez reached that conclusion not because § 2241 actually addressed the scope of our jurisdiction over § 2241 petitions, but because we had held in other decisions that exhaustion that was explicitly required by the governing statutes was jurisdictional with respect to the other inmate claims brought under those statutes. Id. Regardless of how we got there, a number of recent Supreme Court decisions since Gonzalez have undermined it to the point of abrogation. See United States v. Lopez, 562 F.3d 1309, 1312 (11th Cir.2009) (“We remain bound by the rule of our prior precedent unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.”) (quotation marks omitted). The Supreme Court has noted that courts, including it, “have sometimes mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 1243-44, 176 L.Ed.2d 18 (2010). As a result, the term “jurisdiction” has become “a word of many, too many, meanings.” Steel Co., 523 U.S. at 90, 118 S.Ct. at 1010 (quotation marks omitted). Used correctly, “ ‘[jurisdiction’ refers [only] to ‘a court’s adjudicatory authority.’” Reed Elsevier, 559 U.S. at 160, 130 S.Ct. at 1243" }, { "docid": "22154219", "title": "", "text": "men’s bathroom two feet away from the urinals, during which he was obliged to stand barefoot on the dirty floor. B. Exhaustion of Administrative Remedies Before filing his Bivens suit, Nunez took steps to exhaust his administrative remedies. We first describe the grievance procedures established by the federal Bureau of Prisons (“BOP”). We then describe Nunez’s attempts to follow those procedures. 1. Governing Regulations The BOP grievance process is set forth at 28 C.F.R. § 542.13-.15. As a first step in this process, an inmate normally must present his complaint informally to prison staff using a BP-8 form. If the informal complaint does not resolve the dispute, the inmate may make an “Administrative Remedy Request” concerning the dispute to the prison Warden using a BP-9 form. The BP-8 and BP-9 are linked. Both forms involve a complaint arising out of the same incident, and both forms must be submitted within 20 calendar days of the date of that incident. 28 C.F.R. § 542.14(a). An extension of time is available upon a showing of valid reason for delay. Section 542.14(b) provides a non-exhaustive list of reasons that justify an extension of time. Valid reasons “include ... an extended period in-transit during which the inmate was separated from documents needed to prepare the Request or Appeal.” Id. If the Warden renders an adverse decision on the BP-9, the inmate may appeal to the Regional Director using a BP-10 form. 28 C.F.R. § 542.15(a). The BP-10 must be submitted to the Regional Director within 20 calendar days of the date of the Warden’s decision. Id. As with the time period for filing a BP-9, an extension of time is available upon a showing of a valid reason. Id. Section 542.15(a) provides that “[v]alid reasons for delay include those situations described in § 542.14(b).” Id. The inmate may appeal an adverse decision by the Regional Director to the Cen tral Office (also called the General Counsel) of the BOP using a BP-11 form. Id. The BP-11 must be submitted to the Central Office within 30 calendar days from the date of the Regional Director’s" }, { "docid": "17366285", "title": "", "text": "for claims filed under the PLRA. Assuming arguendo equitable tolling is applicable, defendants argue that Gonzalez’s claim still fails because BOP regulations provide an administrative remedy period, “at the long end of the spectrum,” of one hundred and forty days from the filing of a remedy request, while Gonzalez’s claim implicates an administrative remedy period in excess of three hundred days. The PLRA’s administrative remedy program for inmate grievances, 28 C.F.R. §§ 542.11-542.18, requires that an inmate first attempt resolution of his or her grievance through informal channels before submitting a Request for Administrative Remedy (“RAR”). 28 C.F.R. § 542.13(a). Should informal remedies prove unsuccessful, the inmate has twenty days from the occurrence of the incident to submit an RAR, although an extension may be allowed where the inmate demonstrates a valid reason for delay. Id., § 542.14. The warden has 20 calendar days to respond to an RAR and, if not satisfied with the warden’s response, the inmate may appeal to the appropriate regional director within 20 calendar days of the date the warden signs the response. Id., §§ 542.15(a), 542.18. If not satisfied with the regional director’s response, the inmate may appeal to the general counsel within 30 calendar days of the date the regional director signs the response. Id., § 542.15(a). Once an appeal is filed, the regional director must respond within 30 calendar days and the general counsel within 40 calendar days, and if the time to respond is insufficient, it may be extended once by 20 days at the institution level, 30 days at the regional level, and 20 days at the central office level. Id., § 542.18. Upon the inmate’s showing of a valid reason for delay, all the deadlines may be extended. Id., § 542.15(a). Under this latter provision, therefore, the time for achieving a resolution under the PLRA could be considerably longer than 140 days. In some instances, it is certainly possible that a full three years could pass while an inmate exhausts his administrative remedies. Cf. Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir.2004) (“[EJxhaustion may be achieved in situations" }, { "docid": "12598947", "title": "", "text": "and that they had talked on the phone. The BOP offered into evidence a “kite,” which is prison-speak for an illicit letter smuggled past prison officials. The kite, which was found in Santiago-Lugo’s cell, was written by the inmate who testified for him, and it assured him that the inmate would accept responsibility for the cell phone. The discipline hearing officer considered Santiago-Lugo’s denial, but citing the “weight of [the] evidence,” including the kite written to Santiago-Lugo, he concluded that Santiago-Lugo had violated BOP Code 199, “Conduct Which Disrupts or Interferes with the Security or Orderly Running of the Institution (Most like Possession of a Hazardous Tool; Cell Phone, Code 108).” The sanctions imposed on Santiago-Lugo included the loss of 40 days of good-conduct time, disciplinary segregation for 60 days, and the loss of certain privileges for six months. He was advised of his right to appeal, and on April 25, 2012, he received a copy of the discipline hearing officer’s report. On May 3, 2012, Santiago-Lugo timely filed a Regional Administrative Remedy Appeal, which the regional director denied on May 24. From that date, SantiagoLugo had 30 days to file a Central Office Administrative Remedy Appeal with the BOP’s Office of General Counsel. See 28 C.F.R. § 542.15(a). He asserts that he did file an appeal within that time frame, and in support of that assertion he points to a certified mail receipt indicating that the Office of General Counsel received a letter from him on June 15. But the Administrative Remedy Index, the database into which that appeal would have been entered, has no record of it. Regardless of whether Santiago-Lugo filed a Central Office Administrative Remedy Appeal with the Office of General Counsel on June 15, it is undisputed that he filed (or refiled) one on September 18, 2012. Because that September 18, 2012, appeal was filed more than 30 days after the regional director’s May 24 denial, the Central Office rejected it as untimely. The Central Office advised Santiago-Lugo that it might still consider his appeal if he provided written documentation on BOP letterhead indicating that" } ]

[ { "docid": "796930", "title": "", "text": "RIVES, Circuit Judge: In this diversity personal injury suit growing out of an automobile accident in which the jury verdict was adverse to plaintiff, the question for decision is whether the trial judge properly instructed the jury on the law applicable to the issues of negligence involved in the case. The accidental injury grew out of an intersectional collision in the City of New Orleans in which Mrs. Lind, plaintiff-appellant, was riding as a guest passenger in an automobile owned and operated by her husband which was proceeding up Baronne Street, a through street, and was involved in a collision at Melpomene Street with an automobile of the assured of defendant Aetna. There is a traffic stop sign to traffic on Melpomene Street at the Baronne Street intersection. Appellant contends that the court erred in refusing to grant any of the thirteen special charges which were submitted to the court by her for instruction to the jury on the applicable Louisiana law. She also assigns as error the court’s giving of a charge on unavoidable accident and contends that the written interrogatories submitted by the court to the jury were inconsistent and confusing. On the other hand, appellee responds that the court’s charge was sufficient since it covered the general issues of negligence, proximate cause, preponderance of evidence, weight of evidence, measure of damages, and unavoidable accident. Appellee further contends that the court’s refusal to give appellant’s special charges was correct because the facts and circumstances of the case did not justify such instructions. The Lind vehicle was being operated up Baronne Street by plaintiff’^ husband. Baronne is a four-lane, one-way, through street. Appellee’s assured, Lyman E. Gaude, was proceeding on a cross-town street, Melpomene, and apparently had stopped for the stop sign and thence proceeded into Baronne Street where his view of traffic was blocked by a panel truck parked at the corner on the Baronne Street side nearest him. He saw the approaching Lind vehicle and attempted to accelerate to cross the intersection when his automobile sputtered and seeing that he could not clear the intersection in time," } ]

[ { "docid": "7838929", "title": "", "text": "Texas law, she is presumed to have exercised due care in the operation of the saw. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 483 (1943). Plaintiff is only partially right. There is indeed a presumption of due care under Texas law; however, it arises only where the injured party is unable to defend himself against a claim of contributory negligence. Though Gross testified on her own behalf at trial, she asserts that because she had no memory of the accident, the presumption should apply to her. See Bodine v. Welder’s Equipment Co., 520 S.W.2d 407 (Tex.Civ.App.1975). Though we are uncertain that Bodine applies in this instance, we need not reach that issue. Even assuming that such a presumption of due care existed, upon the introduction of contrary evidence, the presumption, which is not evidence, ceases to exist, Empire Gas & Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767 (1940), and the presumption is neither to be weighed nor treated as evidence by the jury in arriving at its verdict. Combined American Insurance Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (1962). See Sanders v. Davila, 593 S.W.2d 127, 130 (Tex.Civ.App. 1979). The court in Sanders pointed out that in that case the trial court submitted special issues inquiring whether the plaintiff was negligent with respect to speed, lookout, etc. On that basis, it concluded that these issues would not have been sub mitted if they were not raised by the evidence. Sanders, 593 S.W.2d at 130, citing Rules 277 and 279. As in Sanders, the trial court in this matter also submitted issues to the jury on Gross’ negligence. Though not expressed, the trial court had a right to take into account the evidence presented by Black & Decker that the blade on its saw was plainly visible when the lower blade guard was not in place, that Gross’ injury occurred when her hand encountered the saw at the front of the blade, and that Black & Decker’s expert witness testified that such accidents do not occur unless the operator fails" }, { "docid": "6258554", "title": "", "text": "under the law of Georgia. See Castilleja v. Southern Pacific Co., 406 F.2d 669, 670 (5th Cir. 1969); Boothe v. Holmes, 399 F.2d 495, 500 (5th Cir. 1968); Lind v. Aetna Casualty and Surety Co., 374 F.2d 377, 380 (5th Cir. 1967). In Boothe v. Holmes we explained the requirements for adequate jury charges in diversity automobile cases as follows: (1) If instructions properly and fully state the law applicable to a case, refusal to give specified requests or further requests is not ground for reversal; (2) where a state-created right is to be enforced, the state law must be looked to for the substance of the instructions; (3) if requested instruction in accord with party’s contention is consistent with the evidence in the case, it must be granted unless the subject matter has been adequately covered in the charge; and (4) in an automobile intersectional accident case a failure to give plaintiff’s requested instructions on state law relating to such an accident and instead merely giving bare-bones instructions on negligence, proximate cause, preponderance of evidence, weight of evidence, measure of damages, and unavoidable accident is reversible error requiring a new trial. Id. at 500. Although a party is not entitled to have the jury instructed in the particular language of his choice, Fleming v. Michigan Mutual Liability Co., 363 F.2d 186 (5th Cir. 1966), it was not sufficient to only charge the jury on general negligence law; rather an instruction on the applicable state law was required. See Boothe v. Holmes, 399 F.2d at 500. The avoidance defense was fairly raised by the evidence. We conclude that the trial court’s failure to give an appropriate instruction on that defense was error that necessitates reversal and a new trial. REVERSED and REMANDED. . Relying upon Lumbermens Mut. Cas. Co. v. Hutchins, 188 F.2d 214 (5th Cir. 1951) the court also ruled that another objection to certain charges referred to by number only was insufficient to meet the specificity requirement of Rule 51. . Accord, Delancey v. Motichek Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970); Williams v. Hennessey, 328" }, { "docid": "22424636", "title": "", "text": "the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” These authorities sustain the charge to the jury. The evidence makes a case of utter recklessness upon the part of the deceased, who was a section boss of the defendant, charged with the duty of keeping its road in repair between certain points, so that trains could pass over it in safety. He was guilty of the grossest negligence in running his hand-car into the deep cut where he was injured, without having sent any one ahead to watch for, and warn the passenger train, which he knew was approaching, or would soon reach that point on the road. But for his negligence in that respect he would not have been injured. It is said, however, that despite any negligence to be fairly imputed to the deceased, the agents of the company, who were in charge of the passenger train, might have avoided injuring him had they exercised reasonable diligence to that end. This position is supposed by counsel to be justified by §§ 1166, 1167, and 1168 of the Code of Tennessee, which provide : “ Sec. 1298 (1166). Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident. “Sec. 1299 (1167). Every railroad company that fails to observe these precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur.- “Sec. 1300 (1168). No.railroad company that observes, or causes to be observed, these precautions, shall be responsible for any damages done to person or property on its road. The proof that it has observed said precautions shall" }, { "docid": "17997282", "title": "", "text": "JOHN R. BROWN, Chief Judge: This appeal of a personal injury diversity suit raises two questions — first, whether the Trial Judge erred in failing to submit the issue of sole proximate cause to the jury once that issue had been fairly raised by the defendant and second, whether the plaintiff was entitled to $8,329.71 in stipulated medical expenses where the jury’s answers to special interrogatories established defendant’s liability and a lack of causal negligence on the part of plaintiff. We answer no to the first question and yes to the second. On the 17th of June 1972, Adelaido and Mary Gonzales were married in Hearne, Texas. That evening they set off on Farm to Market Road 1644 to a dance in Cameron, Texas. The Missouri Pacific Railroad Company operates a switching track on FM 1644 and at the time Mr. and Mrs. Gonzales arrived at the intersection of the railroad track and the road a switching operation was in progress. The Gonzales automobile crashed into a gondola car of the train which was blocking the crossing. Both Adelaido and Mary suffered serious injuries. At a trial in the District Court the jury, in answer to special interrogatories submitted to it under F.R.Civ.P. 49(a), determined that (i) the crossing was extra-hazardous, (ii) the failure of the railroad to have a warning device at the crossing was a proximate cause of the accident, and (iii) although Adelaido was negligent in his operation of the automobile, this negligence was not a proximate cause of the collision. The jury awarded Mary $25,000.00 for past pain and suffering, $25,000.00 for future pain and suffering, $4,000.00 for loss of earnings in the past, and $40,000.00 for loss of future earning capacity. Adelaido was awarded nothing. Adelaido appeals the zero damage award and the railroad appeals the finding of liability against it. The railroad contends that Texas law required the submission of a special interrogatory to the jury on the issue of sole proximate cause. Under Texas community property law, those elements of the recovery constituting community property would be barred by a finding of causal" }, { "docid": "13340804", "title": "", "text": "without doing so. And it is only in exceptional cases that the rule does not apply, and in cases in which the facts relied upon as creating the exception itself are not superinduced by the want of due care.” Hurt v. Yazoo, supra, 205 S.W. at 442. Our examination of caselaw since Yazoo fully satisfies us that the foregoing is still a proper statement of the Tennessee common law. Maxwell v. Western-Atlantic Railroad Co., 295 F. Supp. 740 (E.D.Tenn.1967); Flinchum v. Clinchfield Railroad Co., 460 F.2d 252 (6th Cir. 1972). No circumstances which would bring this case within the exception to the general rule are shown by the facts here. The crossing was marked and plainly visible to motorists approaching from the west. Unlike the decedent in Wallace v. Louisville and Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964), Perry was a local resident and familiar with the crossing. The undisputed testimony revealed that the whistle and the bell on the train had been in operation. The crossing itself was level and quite ordinary. Perry was bound by what he could have discovered in the exercise of ordinary care. Flitchum v. Clinchfield R. Co., supra. In light of the circumstances attending the collision here, the trial court determined that had Perry been exercising due care for his own safety, he would have been able to avoid the accident. We agree. The conclusion is inescapable that in driving upon the tracks and into the path of the train, plaintiff’s decedent was guilty of contributory negligence. It is equally clear that his negligence operated concurrently with any of the defendant and was a “predominant” cause of his death, and thus, under the standards set forth in Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S.W. 804 (1912) and Todd v. Cincinnati, N. O. & T. P. Ry. Co., 135 Tenn. 92, 185 S.W. 62 (1915), was proximate rather than remote, as a matter of law. We conclude, therefore, that the district court properly granted defendant-appellee’s motion for judgment notwithstanding the verdict. It is therefore unnecessary to consider appellant’s claims respecting" }, { "docid": "11880012", "title": "", "text": "about forty feet from the back of the engine. Viewing the evidence in the light most favorable to the plaintiff, we believe that a jury could infer that a proper, efficient lookout was not being kept immediately prior to the collision and that failure to keep such a lookout was a proximate cause of the collision. We hold that the giving of the lookout instruction was not error. The third instruction assigned as error, AMI No. 1801, reads as follows: There was in force in the State of Arkansas at the time of the occurrence a statute which provided: A railroad is required to place on each locomotive a bell or whistle, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross any public street and shall be kept ringing or whistling until the locomotive has crossed the street. A violation of this statute, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in the case. Defendant says that of the three witnesses who testified concerning the whistle and bell, none said that the whistle and bell were not sounded, and to submit the issue to the jury was therefore error. Furthermore, defendant contends that the presence and approach of the train were so obvious to the decedent that an instruction on signals should not have been given. For its argument that there was insufficient evidence to go to the jury on whether the whistle or bell were sounded, defendant relies on the holding in Haney v. Missouri Pacific R. R., 214 Ark. 673, 217 S.W.2d 610 (1949), wherein a directed verdict for the railroad was upheld. In that case some witnesses testified that the train crew gave the signals, while others stated that they heard no whistle or bell but were unwilling to swear that neither of these signals was given. Despite this holding, there is more recent Arkansas authority permitting this issue to go to the jury under similar facts. Chicago, Rock Island &" }, { "docid": "6258553", "title": "", "text": "timely request for the charge. The similarity between the facts in Davis v. Hammock and this case clearly demonstrates that the avoidance defense was raised by the evidence. In Davis, the plaintiff’s car hit the defendant’s car in an intersection. Plaintiff testified that she did not see defendant’s car until immediately before the collision, but the evidence was conflicting as to whether the plaintiff saw the defendant in time to avoid the consequences. Here there is also conflicting evidence as to whether or not Kroger’s driver saw the Roadrunner truck in time to avoid the consequences. Under the evidence before us Georgia courts would hold that the failure to instruct on the avoidance doctrine is reversible error. Davis v. Hammock; Queen v. Bair, 137 Ga.App. 30, 223 S.E.2d 8 (1975). The manner of giving instructions, however, is a procedural matter which is controlled by federal decisions, not state law. Houston v. Herring, 562 F.2d 347 (5th Cir. 1977). Even so in reviewing Roadrunner’s claim of an alleged error we evaluate the substance of the charge under the law of Georgia. See Castilleja v. Southern Pacific Co., 406 F.2d 669, 670 (5th Cir. 1969); Boothe v. Holmes, 399 F.2d 495, 500 (5th Cir. 1968); Lind v. Aetna Casualty and Surety Co., 374 F.2d 377, 380 (5th Cir. 1967). In Boothe v. Holmes we explained the requirements for adequate jury charges in diversity automobile cases as follows: (1) If instructions properly and fully state the law applicable to a case, refusal to give specified requests or further requests is not ground for reversal; (2) where a state-created right is to be enforced, the state law must be looked to for the substance of the instructions; (3) if requested instruction in accord with party’s contention is consistent with the evidence in the case, it must be granted unless the subject matter has been adequately covered in the charge; and (4) in an automobile intersectional accident case a failure to give plaintiff’s requested instructions on state law relating to such an accident and instead merely giving bare-bones instructions on negligence, proximate cause, preponderance of" }, { "docid": "21379877", "title": "", "text": "plant and a large shopping center. Traffic from these sites is serviced by the four-lane highway in question. The crossing itself was described by the police officer witness as “pretty much open.” On the afternoon of the accident the racetrack was in operation, and witnesses described traffic as “fairly crowded” — “fairly heavy.” Under state regulation the railroad had been required six years before this accident to install automatic short-arm gates and flasher signals at this crossing, in addition to the regular cross-buck railroad crossing signs. In this ease it is undisputed that all the warning and protective devices required by law and specified by the Public Service Commission were operating properly on the date of the fatal accident. This included the air horn on the diesel engine, which all of the witnesses testified to hearing blow. On these facts the trial judge denied a motion for directed verdicts, holding that there were issues of fact which established jury questions both as to defendant’s negligence and the driver’s contributory negligence. He charged the jury to consider the plaintiffs’ negligence claims under only two issues: “The only grounds now relied on by plaintiffs to establish negligence on the part of the defendant, as I have already mentioned, are, first, that the defendant railroad operated its train at an excessive speed and, second, that the engine crew for whose acts the defendant is responsible failed to keep a proper and adequate lookout for traffic on Middle Belt Road. “The plaintiffs do not now claim any failure on the part of the defendant railroad in maintaining or operating adequate and required traffic protection devices at the crossing, including the timing of such devices, and, therefore, I instruct you to disregard any testimony with respect thereto. “There was no statute or city ordinance placing a speed limit on the train involved in this collision on June 16, 1961, but, nevertheless, under the law, the train must be run at a reasonable speed and with that degree of care and prudence required for the safety of the lives and property of those engaged in the" }, { "docid": "22344900", "title": "", "text": "Per Curiam. Petitioner, Alvaro Alcorta, was indicted for murder in a Texas state court for stabbing his wife to death. Vernon’s Tex. Pen. Code, 1948, Art. 1256. He admitted the killing but claimed it occurred in a fit of passion when he discovered his wife, whom he had already suspected of marital infidelity, kissing one Castilleja late at night in a parked car. Petitioner relied on Texas statutes which treat killing under the influence of a “sudden passion arising from an adequate cause ... as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection” as murder without malice punishable by a maximum sentence of five years’ imprisonment. Vernon’s Tex. Pen. Code, 1948, Arts. 1257a, 1257b, 1257c. The jury, however, found him guilty of murder with malice and, acting under broad statutory authority to determine the extent of punishment, sentenced him to death. The judgment and sentence were affirmed by the Texas Court of Criminal Appeals. 165 Tex. Cr. R.-, 294 S. W. 2d 112. Castilleja, the only eye witness to the killing, testified for the State at petitioner’s trial. In response to inquiries by the prosecutor about his relationship with the petitioner’s wife, Castilleja said that he had simply driven her home from work a couple of times, and in substance testified that his relationship with her had been nothing more than a casual friendship. He stated that he had given her a ride on the night she was killed and was parked in front of her home with his car lights out at two o’clock in the morning because of engine trouble. The prosecutor then asked what had transpired between Cas-tilleja and petitioner’s wife in the parked car: “Q. Did you have a conversation with Herlinda? “A. Yes; she opened the door. She was going to get .off [sic] and, then, she told me to tell my sister to come and pick her up in the morning so she could go to church. “Q. To tell your sister, Delfina Cabrera, to come" }, { "docid": "17657751", "title": "", "text": "operated the train at an excessive speed, without proper lookout, and without appropriate sound warnings during its approach. The case was tried on May 1st and 2nd, 1979. Plaintiffs introduced evidence to substantiate their claim that the railroad was negligent. The defendant put an eyewitness and expert testimony that contradicted plaintiffs’ evidence, and which tended to show that the deceased’s contributory negligence (excessive speed and failure to keep a proper lookout) caused the accident. The jury retired with general interrogatories and on May 3rd returned with a verdict for the plaintiffs. The jury verdict found defendant 95% negligent and the deceased 5% negligent. The panel then assessed damages at $300,-000 for the wife, $92,000 for each of the five children, and $40,000 for the deceased’s mother. The trial judge reduced the awards based upon the decedent’s contributory negligence and entered final judgment in the aggregate sum of $760,000. The defendant filed a timely motion for new trial, and the district court promptly denied the motion. Defendant then instituted this appeal. The defendant raises six points of error on appeal. The first is leveled at the district court’s jury charge. The deceased’s wife remarried prior to the trial of the lawsuit. While the trial judge allowed the remarriage to come into evidence, he instructed the jury that they were not to consider the remarriage in assessing damages. The defendant contends this instruction is contrary to Texas law. The crux of defendant’s position is that the Texas Legislature, when it enacted Article 4675a (making evidence of remarriage admissible), intended to allow juries to consider the effect of remarriage on the surviving spouse’s damages. To support this assertion defendant refers us to the testimony of State Senator Blanchard before the Texas Senate Jurisprudence Committee on March 27, 1973. During the course of his testimony concerning then proposed Article 4675a he said, “It just provides that if there is a ceremonial marriage you may present this in evidence in mitigation of damages, nothing more or nothing less.” There is no other reference to this aspect of Article 4675a in the Senate hearings, the House" }, { "docid": "8598553", "title": "", "text": "whistle issue to send it to the jury. See Union Pac. Ry. Co. v. Burnham, 124 F.2d 500 (10th Cir. 1941). Appellant argues there was no dereliction of duty in not equipping the train with a movable headlight. Secondly, there was insufficient evidence supporting appellees’ claim that engineer Butchofsky failed to keep a proper lookout and that brakeman Crump failed to give a warning. We believe there is sufficient evidence warranting a jury instruction on these two issues and thus will belabor the point no further. With respect to keeping a proper lookout, appellant suggests the trial court should have given appellant’s requested instruction concerning the right of the crew to assume Domingo would stop at the crossing. While this specific instruction was not given it is clear the subject was thoroughly covered in the trial court’s foreseeability instruction and thus appellant suffered no prejudice. Appellant alleges the court erred in submitting to the jury the issue of adequacy of warning devices at Canal Street crossing. It is appellant’s contention that because New Mexico follows the stop, look and listen rule the railroad company is not negligent in failing to maintain' automatic protection devices unless the crossing is more than ordinarily hazardous. 74 C.J.S. Railroads § 727. Although New Mexico courts have not defined the standard of care of a railroad for placing warning devices at public highway crossings we can infer from Landers v. Atchison, T. & S. F. Ry. Co. (II), supra, that a railroad is expected to exercise the standard of care of a reasonably prudent person. Under this standard we can infer that New Mexico would require railroads to give reasonable and timely warning of approaching trains. And whether reasonable care and prudence require under all the circumstances of this case that special warning facilities be maintained at a crossing is a question of fact for the jury. See Union Pac. Ry. Co. v. Lumbert, 401 F.2d 699 (10th Cir. 1968); Chicago & N. W. Ry. Co. v. Golay, 155 F.2d 842 (10th Cir. 1946). Appellant nevertheless argues the only evidence relating to inadequate warning devices" }, { "docid": "6906119", "title": "", "text": "of its trains; and if children are discovered upon the tracks, or perilously near the same, the company’s servants are bound to exercise reasonable diligence to avoid injury to them. Defendant’s instruction No. 7 was therefore properly refused. By it defendant asked the court to apply the same rule to the infant deceased that the law applies in the case of an adult trespasser.” It is not for us to debate the justification for this distinction, but only to follow the law as enunciated by the highest court of the State. Undoubtedly, the West Virginia Court has permitted recovery by infant trespassers in circumstances where relief would be denied to adults. Indeed, the defendant has cited no case denying recovery to an infant trespasser where the railroad could have avoided the accident, had a reasonable lookout been maintained. A study of the cases convinces us that the trial Judge properly applied the West Virginia law, which required the case to be submitted to the jury. II. The defendant asserts that the trial Judge should have declared the plaintiff guilty of contributory negligence as a matter of law, and that he erred in submitting the question to the jury. We do not agree. In West Virginia the presumption, although rebuttable, is that a child between the ages of 7 and 14 years is incapable of contributory negligence, Pitzer v. M. D. Tomkies & Sons, 1951, 136 W.Va. 268, 67 S.E.2d 437, 442, and where the defendant owes a duty to exercise reasonable care for an infant plaintiff’s safety, the burden of proving such a plaintiff’s mental capacity to comprehend and avoid danger is on the defendant. Simmons v. Chesapeake & O. R. Co., 1924, 97 W.Va. 104, 124 S.E. 503, 505. We cannot say, nor was it for the District Judge to say, as a matter of law that the plaintiff, 9 years and 8 months of age, acted unreasonably and thoughtlessly for a boy of his age and intelligence by fishing from the railroad trestle and failing to escape from his position of danger in time to avoid the oncoming" }, { "docid": "21532141", "title": "", "text": "HUTCHESON, Circuit Judge. The suit was for damages suffered by appellee in a crossing collision between one of appellant’s locomotives and an automobile in which she was riding with her husband. The claim was that those operating the locomotive were negligent in backing over the crossing without giving the signals, and keeping the lookout due care demanded, and that this negligence, concurring with that of the driver of the automobile, was the proximate cause of her injury. Defendant, joining issue and pleading contributory negligence, there was a trial to a jury with a verdict for plaintiff. This appeal from the judgment on that verdict tests whether the refusal of defendant’s motion for an instructed verdict was error. Appellant concedes that appellee was not herself guilty of negligence, and that the admitted negligence of plaintiff’s husband may not be imputed to her, if defendant receiver was also negligent and his negligence concurring with that of her husband was the proximate cause of her injuries. Miller v. Union Pac. R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Stringfellow v. Atlantic Coast Line R. Co., 290 U.S. 322, 54 S.Ct. 175, 78 L.Ed. 339. The point he makes is that plaintiff can take no comfort from these cases, for, under the undisputed facts, her husband’s negligence was in law not a concurring, but the sole proximate cause of the collision. Appellee, on her part, not at all controverting appellant’s conclusion that she may not recover if her husband’s negligence was the sole proximate cause of the injury, vigorously disputes the premise on which that conclusion rests. She insists that the testimony was in conflict upon whether the bell was rung and the whistle blown, and that the jury’s verdict has established that they were not. She puts her main reliance, however, upon the proposition that there was evidence from which the jury could have found that the flagman did not, as he testified he did, precede the locomotive across the street at a reasonable distance, as required by an ordinance of the city of Birmingham, and that the violation of" }, { "docid": "9973262", "title": "", "text": "Negligence Per Se The plaintiff-appellant’s second assertion on appeal is that CN-IC violated Tennessee’s “Lookout Statute,” Tenn. Code Ann. § 65-12-108, and thereby committed negligence per se. The plaintiff-appellant advances two specific assertions: (1) the district court erred by not finding negligence per se as a matter of law; and (2) that the jury erred in failing find CN-IC negligent per se. Tennessee law provides: Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident .... Tenn. Code Ann. § 65-12-108(3). Further, A violation of any provision of § 65-12-108 by any railroad company constitutes negligence per se and in the trial of any causes involving § 65-12-108, the burden of proof, the issue of proximate cause, and the issue of contributory negligence shall be tried and be applied in the same manner and with the same effect as in the trial of other negligence actions under the common law of Tennessee. Tenn. Code. Ann. § 65-12-109. As an initial matter, we observe that the plaintiff-appellant did not request the district court to find as a matter of law that CN-IC violated the foregoing statute. This Court “has repeatedly held that it will not consider arguments raised for the first time on appeal unless our failure to consider the issue will result in a plain miscarriage of justice.” United States v. Ninety-Three (93) Firearms, 330 F.3d 414, 424 (6th Cir.2003) (quotation marks omitted). It is CN-IC that asserts that a plain miscarriage of justice will occur should we apply the1 statute to facts presented in the case sub judice. CN-IC advances the broad assertion that Tennessee’s Lookout Statute does not apply to switching operations. See (Final Br. of Appellee at 44) (citing Chattanooga Station Co. v. Harper, 199 S.W. 394, 397 (Tenn.1917)). The case relied upon by CN-IC, Harper, 199 S.W. 394, is inapposite, as-there," }, { "docid": "11816597", "title": "", "text": "HUTCHESON, Chief Judge. Brought by the husband, the driver and owner of an automobile, and his wife, a passenger in it, the suit, in two counts, was for the damages each plaintiff suffered as a result of the collision of a following automobile with the one in which they were riding. The claim in count one was that the defendant Sweeney, who was driving the car, with the consent and authorization of the defendant Mundy, its owner, negligently drove into the rear of plaintiff Tharp’s car, causing Mrs. Tharp serious injuries and expenses for medical attention. Count two charged the same negligence and that it had caused Mr. Tharp the loss of the comfort and society of his wife and the expense of repairing the automobile. The defenses were: (1) denials of the negligence charged and the damages claimed; and (2) pleas (a) that the driver of the Tharp car was himself negligent in not keeping a proper lookout and in suddenly stopping it without giving a warning signal, and this negligence was the cause of the injuries; and (b) that Mrs. Tharp was herself contributorily negligent in not keeping a'proPer lookout for her own safety. On these' pleadings the case was fully tried to a jury and, the evidence concluded, while plaintiffs and defendants did present special requests to charge, neither moved for a directed verdict, and, therefore plaintiffs may not attack the sufficiency oí the evidence here. Employers Liability v. Lejeune, 5 Cir., 189 F.2d 521 at page 524. The court denying some, and granting others, of. these requests, including four dealing with Mrs. Tharp’s negligence requested by the defendants, there was a verdict and judgment for defendants, and plaintiffs have appealed. While other grounds for reversal are put forward, appellants ■ place their main reliance on the giving and refusal of instructions to the jury. Of these claimed errors, plaintiffs make the most of the submission to the jury of the issue of contributory negligence as to Mrs. Tharp. Striking at the instructions as fundamentally erroneous because there was no basis in the evidence for the submission" }, { "docid": "8598550", "title": "", "text": "Crump testified that he was concerned the Lopez truck might not stop before entering the crossing. • No evidence was offered indicating Domingo’s failure to stop produced a result that could not be reasonably foreseen to be a result of appellant’s failure to provide adequate warning devices and/or failure to properly blow the train whistle. We therefore find no error in the trial court’s refusal to instruct the jury on independent intervening cause. Appellant's third argument is the trial court erred in submitting to the jury issues on the train’s speed, failure to warn, proper lookout, and the adequacy of lights on the railroad engine. Appellant’s position is there was no substantial evidence to support these issues. The trial court, as part of .its instructions, stated the following: [T]he deaths which Plaintiffs claim were proximately caused by one or more of the following claimed acts or omissions of negligence: The train whistle was sounded unreasonably late to avoid the danger of a crossing collision; Engineer Butchofsky did not keep a proper lookout and brakeman Crump did not timely warn' engineer Butchofsky of the approaching Lopez pickup truck; Engineer Butchofsky did not maintain proper control of the train’s speed so as to avoid placing city residents in danger and so as to avoid an accident at the city grade crossing; The Southern Pacific did not operate its locomotive with adequate lights, including a moving headlight, to give motorists reasonable warning of the approach of a train; There is no law that regulates the speed of a railroad train except the basic principle that it shall exercise ordinary care, and therefore any speed consistent with such care is lawful and proper. With respect to the issue of speed, appellant .argues that its train was within the 60 miles per hour speed limit. Hence, the court should not have allowed the train’s speed to be an issue. In light of the circumstances surrounding this case, however, we\" disagree with appellant’s contention. There is evidence suggesting the train was traveling 60 miles per hour as it approached a residential subdivision’s only major access to" }, { "docid": "14042927", "title": "", "text": "the case____” (Tr. at 778). Thus, the jury was specifically instructed at the time that the PSC certificate was entered in evidence that it would determine the issue of extrahazardousness. Further, final jury instruction 15 explicitly informed the jury that it was their responsibility to determine whether the crossing was extrahazardous and whether the railroad had placed an adequate warning at the crossing. In closing argument, defense counsel also emphasized that it was the jury’s role to determine if the crossing was extrahazardous. A review of the instructions given during the trial and after closing argument reveal that the jury was clearly instructed that it was their responsibility to determine whether or not the crossing was extrahazardous. Thus, we hold that jury instruction 22C did not affect the substantial right of Smith to receive a fair trial. Ill Smith next contends that the district court erred in submitting an instruction to the jury on Smith’s contributory negligence. The jury instruction stated, in part: “Contributory negligence is the failure of a plaintiff to use reasonable care to avoid injury to herself, which failure is a proximate cause of the injuries or damages for which recovery is sought____ If you find, after considering all the evidence in this case, that the plaintiff was negligent in any manner which proximately contributed to the plaintiff’s damages, then the plaintiff cannot recover from the defendant.” Smith argues that the record fails to contain any evidence from which a jury could conclude that she was contributorily negligent and thus as a matter of law the contributory negligence instruction should not have been submitted to the jury. Pursuant to Indiana law, a passenger of a vehicle is not required to be constantly on the lookout for approaching vehicles or unexpected danger, Lindley v. Sink, 218 Ind. 1, 16, 30 N.E.2d 456, 462 (1940); Spratt, 468 N.E.2d at 1063; Horton v. Sater, 140 Ind.App. 1, 6, 221 N.E.2d 452, 454 (1966). “Nevertheless, if a passenger using reasonable care should have seen an approaching vehicle enabling her to warn the driver who could have prevented the collision, it would" }, { "docid": "13340805", "title": "", "text": "Perry was bound by what he could have discovered in the exercise of ordinary care. Flitchum v. Clinchfield R. Co., supra. In light of the circumstances attending the collision here, the trial court determined that had Perry been exercising due care for his own safety, he would have been able to avoid the accident. We agree. The conclusion is inescapable that in driving upon the tracks and into the path of the train, plaintiff’s decedent was guilty of contributory negligence. It is equally clear that his negligence operated concurrently with any of the defendant and was a “predominant” cause of his death, and thus, under the standards set forth in Grigsby & Co. v. Bratton, 128 Tenn. 597, 163 S.W. 804 (1912) and Todd v. Cincinnati, N. O. & T. P. Ry. Co., 135 Tenn. 92, 185 S.W. 62 (1915), was proximate rather than remote, as a matter of law. We conclude, therefore, that the district court properly granted defendant-appellee’s motion for judgment notwithstanding the verdict. It is therefore unnecessary to consider appellant’s claims respecting the charge to the jury. Affirmed. . 59-845. Obedience to signal indicating approach of train. — (a) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when : 1. A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train ; 2. A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; 3. A railroad train approaching within approximately one thousand five hundred (1,500) feet of the highway crossing emits a signal audible from such distance # and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; 4. An approaching railroad train is" }, { "docid": "18363419", "title": "", "text": "was totally unaware of the approaching train. Again, it is elementary that Bishop Emery had no legal duty to maintain a lookout as he approached the railroad crossing. And surely, riding in a vehicle which has frosted side windows does not make a passenger contributorily negligent. A guest passenger ordinarily has not the duty to warn of a danger until (1) he becomes aware of the danger itself, (2) he is aware that the driver is oblivious to it, and (3) that a protest or warning might avert the accident. Cf. Rutz v. Iacono, 229 Minn. 591, 40 N.W.2d 892 (1950). In many cases the duty of the guest passenger under realistic standards of care and safety is to do nothing and remain silent. Cf. Yarabek v. Brown, 357 Mich. 120, 97 N.W.2d 797 (1959). Only in extreme situations, where the evidence is far more compelling than here, could a passenger’s action be sufficiently controlling to avoid the accident. For the most part an instruction on contributory negligence of a guest passenger in an automobile case is fictionalized “gobbledygook.” It is “full of sound and fury, signifying nothing.” It serves only to confuse juries and augment findings of error in appellate courts. The instant case is typical. Without awareness of the train’s approach it is difficult for me to perceive what duty Bishop Emery was to perform. The only inference one can make from the totality of circumstances here is that Bishop Emery should have maintained a better lookout in order to have seen the train in order to have issued some kind of warning to the driver in order to avert an accident. The only trouble with this inductive imperspicuity is that the law of North Dakota does not provide the basic premise of original duty. In fact the North Dakota law is just the contrary: “She [plaintiff] was not charged with the duty of keeping a lookout. Simmons v. Leighton, 60 S.D. 524, 244 N. W. 883. Her duty was to inform the driver of any peril of which she was aware. Wilson v. Oscar H. Kjorlie Co.," }, { "docid": "4346892", "title": "", "text": "C. R. R. v. Crawford, 24 Ohio St. 631 (1874). “[A] person to whom a duty of care is owing may assume that it will be performed, so that failure to anticipate negligence does not operate to defeat an action for injuries sustained.” 16 Ohio Jur.2d Railroads § 351 (1961). See Meek v. Pennsylvania Co., 38 Ohio St. 632 (1883); Hart v. Devereux, 41 Ohio St. 565 (1885). In short, “if a traveler, acting as a reasonably prudent person, is misled by the absence of signals or warnings required of a railroad company into believing that he might cross the tracks in safety and is struck by a train while attempting to do so, he is not precluded from recovering damages.”' 46 Ohio Jur.2d Railroads § 353, p. 387 (1961). See Schweinfurth v. Cleveland, C., C. & St. L. Ry., 60 Ohio St. 215, 54 N.E. 89 (1899); Cleveland, C., C. & St. L. Ry. v. Kuhl, 123 Ohio St. 552, 176 N.E. 222 (1931). Thus, the District Court’s denial of a directed verdict for the railroad was proper. The disputes concerning Appel-lees’ ability to see the approaching train’s headlight, the presence of warning signs, and related issues should be submitted to the jury for factual resolution. Because we remand for a new trial on the issues of proximate causation and contributory negligence, we see no reason to respond to several other of Appellants’ objections. One point, however, cannot escape our attention, because of its patent erroneousness. The District Court charged the jury that Ohio law requires that “both the horn or whistle and the bell must be continuously sounded until such engine passes the crossing. . Accordingly, if you find in this case that the engineer Johnson failed to either ring his bell for the full 1320 or more feet, or that he failed to continue to sound his horn while his train covered the 1320 feet up to and over the Parmely Road crossing, then you must thereby find that the railroad has violated the Ohio law. ...” This charge was incorrect because it interprets Ohio law to" } ]

[ { "docid": "12173567", "title": "", "text": "applying a deferential standard of review. III. The Bankruptcy Court erred, however, with respect to the merits. On April 11, 2005, the Bankruptcy Court filed an order granting the Defendant’s Motion to Dismiss Mullarkey’s Complaint. The Bankruptcy Court held that Mullarkey’s claims were precluded by the doctrines of res judicata, collateral estoppel, and alternatively, the entire controversy doctrine, because “[a]ll of [his] arguments have been repeatedly rejected by this Court, by the district court on appeal and on subsequent motions for reconsideration, as well as by the state court.” Based on the record before us, we are compelled to disagree. A. As part of its analysis of the res judicata and collateral estoppel doctrines, the Bankruptcy Court noted that there is no dispute as to party identity. It also found “that the claims and issues involving [Mullarkey] and the Defendants ... are identical to those previously raised and litigated not only in this Court, but in the district and state courts as well.” That Court stated that the language in Mullar-key’s present Complaint is similar to submissions he made in prior proceedings before the Bankruptcy Court and other courts. Finally, the Bankruptcy Court asserted that all of Mullarkey’s claims were considered and rejected in “its initial determination granting the Tamboers relief from the automatic stay in March 2001, as well as in the Debtor’s motion for a stay of the Stay Relief Order.” The doctrine of res judicata bars not only claims that were brought in a previous action, but also claims that could have been brought. Post v. Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir.2007). It “protects] litigants from the burden of relitigating an identical issue with the same party or his privy and ... promotes] judicial economy by preventing needless litigation.” Id. (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)). Both New Jersey and federal law apply res judicata or claim preclusion when three circumstances are present: “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and" } ]

[ { "docid": "18025295", "title": "", "text": "same as, or in privity with, those in the first action; and (3) the claim(s) in the later action must grow but of the same transaction or occurrence as the claim in the earlier one. Watkins, 124 N.J. at 412, 591 A.2d at 599. Not only does claim preclusion apply to claims actually litigated, but the New Jersey Supreme Court has explained that the doctrine applies to all claims that should have been brought in the earlier action. The Court stated, Claim preclusion appliés not only to matters actually determined in an earlier action, but to all relevant matters that could have been so determined. Angel v. Bullington, 330 U.S. 183, 192-93, 67 S.Ct. 657, 662, 91 L.Ed. 832, 838-39 (1947); Culver v. Insurance Co. of N. Am., 115 N.J. 451, 463, 559 A.2d 400 (1989). For the purposes of res judicata, causes of action are deemed part of a single “claim” if they arise out of the same transaction or occurrence. Restatement (Second) of Judgments, supra, § 24. If, under various theories, a litigant seeks to remedy a single wrong, then that litigant should present all theories in the first action. Otherwise theories, not raised will be precluded in a later action Angel, supra, 330 U.S. at 192-93, 67 S.Ct.. at 662, 91 L.Ed. at 838-39; Cemer v. Marathon Oil Co., 583 F.2d 830, 832 (6th Cir.1978). Watkins, 124 N.J. at 412-413, 591 A.2d at 599; See also Pittman v. La Fontaine, 756 F.Supp. 834, 841 (D.N.J.1991). Under New Jersey law, the entire controversy doctrine determines which claims “should” have been asserted in the prior action and, thus, the extent of the preclusive impact of a judgment in such action. Culver v. Insurance Co. of North America, 115 N.J. 451, 463, 559 A.2d 400 (1989); See also Mazzilli v. Accident and Casualty Ins. Co., 45 N.J.Super. 137, 141, 131 A.2d 546 (App.Div.1957). In addition to precluding claims that should have been brought, the entire controversy doctrine has been extended to bar claims against parties who should have been named in the prior action but were not. Cogdell v. Hospital" }, { "docid": "14555139", "title": "", "text": "Plaintiffs’ RCRA suit is barred. 1. New Jersey Res Judicata New Jersey’s res judicata jurisprudence has three basic elements: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. Watkins v. Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 410, 591 A.2d 592 (1991) (noting that New Jersey and federal res judicata have same elements). This Court finds that New Jersey preclusion rules also include a jurisdictional requirement. Under the prior jurisdictional competency rule, a judgment in one court will not preclude a claim over which it lacks jurisdiction, when that claim is later advanced in a second court. See, e.g., Nanavati v. Burdette Tomlin Memorial Hosp., 857 F.2d 96, 112 (3d Cir.1988). In Nanavati, the Third Circuit closely examined New Jersey preclusion laws to determine whether a New Jersey state court judgment would preclude a subsequent action that was based in federal antitrust laws. See generally Nanavati, 857 F.2d 96. The court concluded that the New Jersey courts would follow the approach of the Restatement (Second) of Judgments and decline to preclude a claim over which it lacked jurisdiction. Id. at 112-15. Finding no case on point, the Court of Appeals concluded that New Jersey courts require prior jurisdictional competency after looking to: (1) New Jersey courts’ reliance on the Restatement (Second) of Judgments; (2) the language and application of New Jersey’s entire controversy doctrine; and (3) the historic application of res judicata to claims prior to the merger of law and equity. Id. This Court agrees with, and must adhere to, the Third Circuit regarding its determination that New Jersey preclusion rules require prior jurisdictional competency. See also PCC Constr. Inc. v. Star Ins. Co., 90 F.Supp.2d 512 (D.N.J.2000) (rely ing on Nanavati to find claims under Miller Act were not precluded because New Jersey required prior jurisdictional" }, { "docid": "23177899", "title": "", "text": "as elsewhere, is the existence of a prior judgment that is final, valid, and on the merits. See Watkins v. Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 591 A.2d 592, 599 (1991); Olds v. Donnelly, 291 N.J.Super. 222, 677 A.2d 238, 243 (App.Div.), certif. granted, 146 N.J. 565, 683 A.2d 1161 (1996); see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981); Restatement (Second) of Judgments § 19 (1982). Although the Entire Controversy Doctrine is not identical to traditional res judicata principles, defendants have pointed to no authority for the proposition that some measure of finality is any less necessary for application of the Doctrine than it is for application of res judicata. Consistent with this reasoning and with Kaselaan, we hold that the Entire Controversy Doctrine does not preclude the initiation of a second litigation before the first action has been concluded. In so holding, we necessarily express our disapproval of Pittston Co. v. Sedgwick James of New York, No. Civ. A. 96-1578, 1996 WL 617139, at *7-9 (D.N.J. Oct. 18, 1996), the only other opinion we have uncovered that addresses the issue we decide today. There, the court held that “the absence of final judgment in the [first] action does not preclude application of the entire controversy doctrine” to bar the second action. Id. at *9, at-. Although Pittston was decided five months after Kaselaan, it fails to cite that opinion. Moreover, the district court in Pittston relied upon the same inferences from Mortgagelinq that we have found to be unsound. See id. at *8, at-. Thus, Pittston suffers from the same infirmities as the opinion of the district court in the instant case and should not be followed. IV. Defendants also moved below for dismissal of the complaint or for a stay on the alternative ground that the court should abstain pursuant to the principles first enunciated in Colorado River, 424 U.S at 817-20, 96 S.Ct. at 1246-48. In order for Colorado River abstention to be appropriate, there must be parallel state and federal litigations" }, { "docid": "13055766", "title": "", "text": "initial decision of the Hawaii district court. Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898 (1948); see also Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir.1981) (citing Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940)). The Federal Circuit directed the Hawaii district court to dismiss Smalls’s claims based on the bar of the statute of limitations. The Hawaii district court is, like the D.C. district court, an Article III court, and, for purposes of res judicata, “[t]he rules of finality ... treat a dismissal on statute-of-limitations grounds ... as a judgment on the merits.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); see Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064, 1081 (9th Cir.2003); Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir.1996); Nathan, 651 F.2d at 1226 (6th Cir.); Myers v. Bull, 599 F.2d 863, 865 (8th Cir.1979) (per curiam); Mathis v. Laird, 457 F.2d 926, 927 (5th Cir.1972) (per curiam) (citing Williamson v. Columbia Gas & Elec. Corp., 186 F.2d 464 (3d Cir.1950)); 18 James Wm. Moore Et Al., Moore’s Federal Practice § 131.30 (3d ed.2006); 18A Charles Alan Wright Et Al., Federal Practice And Procedure § 4441 (2d ed.2002). Similarly, contrary to Smalls’s second contention, the district court did not abuse its discretion by declining to consider his argument that the Federal Circuit lacked jurisdiction: A federal district court lacks jurisdiction to review decisions of other federal courts. See 28 U.S.C. § 1330 ff. Amicus’s contentions also fail to show an abuse of discretion" }, { "docid": "8021451", "title": "", "text": "at 965, New Jersey appears to retain a res judicata doctrine apart from the entire controversy doctrine. See Culver v. Insurance Company of North America, 115 N.J. 451, 559 A.2d 400, 404-06 (1989) (explicating res judicata law). The New Jersey Supreme Court has noted, however, that the entire controversy doctrine \"attempts to avoid the delay, waste and expense of fragmented litigation” and that “[t]o this extent, the entire controversy doctrine is wholly consistent with the doctrine of res judicata.” Id. 559 A.2d at 406. . We note that the considerations that would argue for the application of federal res judicata law in successive diversity actions would appear to argue with equal force that the entire controversy doctrine — a creature of state law — should not be held applicable in successive diversity suits. However, as already noted, this court has not yet had occasion to decide whether federal or state res judicata law applies in such situations. See in this connection Judge Irenas’s thoughtful opinion in Fioriglio v. City of Atlantic City, 963 F.Supp. 415 (D.N.J.1997). The New Jersey Supreme Court appears to have held that federal res judicata law governs a second court's actions when the first action was brought in federal court, see Watkins v. Resorts Int'l Hotel and Casino, Inc.. 124 N.J. 398, 591 A.2d 592, 598 (1991) (“the preclusive effect of the judgment is a function of the procedures of the federal court that rendered it”); in Watkins, however, the first action had been a federal-question and not a diversity action. The New Jersey court has also stressed that New Jersey courts’ application of the entire controversy doctrine to bar a stale court action after a previous suit was brought in federal court is not binding on federal courts, stating that “our threshold is not a barrier elsewhere.” Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536, 542 (1995). See generally Stephen B. Burbank, Where’s the Beef? The Interjurisdic-tional Effects of New Jersey's Entire Controversy Doctrine, 28 Rutgers L.J. 87 (1996); Rochelle Cooper Dreyfuss & Linda J. Silberman, Interju-risdictional Implications of" }, { "docid": "14555138", "title": "", "text": "they are taken.’ ” Matsushita Electric Indus. Co. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996) (quoting 28 U.S.C. § 1738). Federal courts use the Full Faith and Credit Act to apply the principles of res judicata (claim preclusion) and collateral estoppel (issue preclusion) to matters that have been previously decided in state courts. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 476 n. 6, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). The preclusive effect of a state court’s decision on a federal court is governed by the preclusion rules of that state court. Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985) (citing Kremer, 456 U.S. at 481-82, 102 S.Ct. 1883). That is, the judgment will have a preclusive effect in the federal court if the judgment would have had a preclusive effect in the court that rendered the judgment. See id. at 381-82, 105 S.Ct. 1327. This Court must look to New Jersey’s res judicata rules to determine whether Plaintiffs’ RCRA suit is barred. 1. New Jersey Res Judicata New Jersey’s res judicata jurisprudence has three basic elements: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. Watkins v. Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 410, 591 A.2d 592 (1991) (noting that New Jersey and federal res judicata have same elements). This Court finds that New Jersey preclusion rules also include a jurisdictional requirement. Under the prior jurisdictional competency rule, a judgment in one court will not preclude a claim over which it lacks jurisdiction, when that claim is later advanced in a second court. See, e.g., Nanavati v. Burdette Tomlin Memorial Hosp., 857 F.2d 96, 112 (3d Cir.1988). In Nanavati, the Third Circuit closely examined New Jersey preclusion laws to" }, { "docid": "456270", "title": "", "text": "be precluded in the second action.... In addition to traditional res judicata, New Jersey has another claim preclusion theory which, ... this Court must apply: the entire controversy doctrine. While similar to res judicata principles, the entire controversy doctrine, which is unique to New Jersey, “encompasses traditional concepts of claims joinder as well as party joinder....” Thus, though the parties and the claims in the second suit may be different than those in the first suit, the second suit may nonetheless be barred because it concerns the series of transactions already at issue in the first suit. It is through this formula, which is broader than traditional res judicata, that the New Jersey Legislature, ... seeks to promote “judicial economy and efficiency by avoiding fragmented, multiple and duplicate litigation.” Sutton v. Sutton, 71 F.Supp.2d 383, 390 (D.N.J.1999), aff'd, 216 F.3d 1077 (3rd Cm. 2000) (quoting Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J. 398, 412, 591 A.2d 592 (1991) and Fornarotto v. American Waterworks Co., Inc., 144 F.3d 276, 278 (3rd Cir.1998)); accord, Dowdell v. University of Medicine and Dentistry of New Jersey, 94 F.Supp.2d 527, 533-34 (D.N.J.2000). New Jersey has a racketeering influenced organizations statute which provides for civil remedies. N.J. Stat. Ann. §§ 2C:41-1, 2C:41-4; Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 188 (3rd Cir.1998). Thus, Plaintiffs’ could have presented this claim in the state court action. Moreover, under New Jersey law, “ ‘[a] dismissal with prejudice “constitutes an adjudication on the merits as fully and completely as if the order had been entered after a trial.” ’ ... [And, New Jersey’s] entire controversy doctrine constrains a plaintiff from “withholdting] part of a controversy for separate litigation even when the withheld component is a separate and independently cognizable cause of action.’” Dowdell, supra (quoting Feinsod v. Noon, 261 N.J.Super. 82, 84, 617 A.2d 1234 (1992) (quoting Velasquez v. Franz, 123 N.J. 498, 507, 589 A.2d 143 (1991) (emphasis added)) and Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3rd Cir.1999)). The undersigned therefore concludes that the state court dismissal with prejudice" }, { "docid": "194615", "title": "", "text": "this proceeding. Thus, Mattson’s motion for summary judgment must also be denied on this ground. C. The Entire Controversy Doctrine The New Jersey Supreme Court has declared that the entire controversy doctrine “ ‘requires parties to a controversy before a court to assert all claims known to them that stem from the same transactional facts, even those against different parties.’ ” Harley Davidson Motor Co. v. Advance Die Casting, Inc., 150 N.J. 489, 497, 696 A.2d 666 (1997) (quoting Joel v. Morrocco, 147 N.J. 546, 548, 688 A.2d 1036 (1997)). A party must join all claims which “arise[ ] from a core set of related factual circumstances” in a single action. DiTrolio v. Antiles, 142 N.J. 253, 272, 662 A.2d 494 (1995). The doctrine pertains to “ ‘virtually all causes, claims, and defenses relating to a controversy.’ ” Oliver v. Ambrose, 152 N.J. 383, 394, 705 A.2d 742 (1998) (quoting Cogdell v. Hospital Ctr. at Orange, 116 N.J. 7, 16, 560 A.2d 1169 (1989)). Failure to join a claim or party as required by the entire controversy doctrine “shall result in the preclusion of the claims to the extent required by the entire controversy doctrine-” Id. (quoting N.J.R. Court 4:30A). New Jersey courts have held that the entire controversy doctrine, like res judicata, is fully applicable to default judgments. See, e.g., Mori v. Hartz Mountain Development Corp., 193 N.J.Super. 47, 55, 472 A.2d 150 (App.Div.1983). However, a party will not be barred from raising additional claims in a subsequent proceeding if he was unable to assert these claims in the initial proceeding. See Harley Davidson, 150 N.J. at 494, 696 A.2d 666. For example, the party may have been barred from raising the claim because the court in the prior proceeding lacked jurisdiction over the claim. See Watkins v. Resorts Intern. Hotel & Casino, 124 N.J. 398, 413, 591 A.2d 592 (1991) (quoting Restatement (Second) of Judgments § 25 cmt. E (1982)) (instructing that if “‘the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground ... then a second action in" }, { "docid": "194604", "title": "", "text": "Jersey law to determine whether a state court default judgment has a preclusive effect on subsequent federal proceedings where the dischargeability of the debt is at issue. See id. at 375, 105 S.Ct. 1327; see also In re Crispino, 160 B.R. 749, 752-53 (Bankr.D.N.J.1993) (using New Jersey law of res judicata, collateral estoppel and the entire controversy doctrine to determine the preclusive effects of a state default judgment in a dischargeability proceeding held in bankruptcy court). Mattson argues that the doctrines of res judicata, collateral estoppel, and the entire controversy all act as a bar here. The Court shall examine each of the aforementioned doctrines and their applicability to the facts and circumstances at hand. A. Res Judicata or Claim Preclusion Under New Jersey law, the doctrine of res judicata precludes parties, or their privies, from re-litigating claims or defenses which were available to the parties in a prior proceeding. See Velasquez v. Franz, 123 N.J. 498, 505, 589 A.2d 143 (1991). “The doctrine of res judicata ‘contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to litigation.’” Culver v. Insurance Company of North America, 115 N.J. 451, 460, 559 A.2d 400 (1989) (quoting Lubliner v. Board of Alcoholic Beverage Control, 33 N.J. 428, 435, 165 A.2d 163 (I960)). The policies supporting this doctrine are patent. “Res judicata ... encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Both New Jersey and federal law apply res judicata or claim preclusion when three circumstances are present: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. Hulmes v. Honda Motor Co., 924 F.Supp. 673, 682 n. 12 (D.N.J.1996) (quoting Watkins v. Resorts" }, { "docid": "23678855", "title": "", "text": "of the issuing court. See id. at 598. This rule affects the application of the entire controversy doctrine in New Jersey state court. Only in “limited circumstances” may the doctrine preclude an action not otherwise precluded by the res judicata effects of a federal decision. See id. at 598-99. The court held that it was essential to consider the federal law of claim preclusion in determining whether to apply the entire controversy doctrine, as an equitable matter, in state court cases. See id. at 599. Watkins thus suggests that New Jersey recognizes the interests of other jurisdictions that have differing preclusion doctrines. In Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536 (N.J.1995), the New Jersey Supreme Court applied the entire controversy doctrine to a plaintiff who had previously sued on the same underlying facts in the federal District Court for the Eastern District of Pennsylvania. Almost a year earlier, a mortgage lender had brought an action in the latter court against Pennsylvania-based companies and individuals who were allegedly the central figures in a fraudulent scheme involving mortgage financing, and the Federal Home Loan Mortgage Corporation (“Fannie Mae”) had intervened as a plaintiff. The second case was brought in New Jersey state court by the lender and Fannie Mae against New Jersey-based companies and individuals who participated in the same mortgage transactions and who were allegedly accessories in the same scheme. Mortgagelinq stated decisively that the entire controversy doctrine is procedural, and that it was formulated specifically to preserve the resources of New Jersey courts. The Court held that the doctrine bars suits in New Jersey against parties who could have been joined in an earlier suit in another state or in federal court. The result was binding only in New Jersey, however; other jurisdictions could permit litigation against earlier-omitted defendants despite a New Jersey decision dismissing an action on entire controversy grounds. The decision thus attempted to cabin the effect of the doctrine outside of New Jersey courts: We hold that when a party deliberately chooses to fragment litigation by suing certain parties in" }, { "docid": "8021452", "title": "", "text": "(D.N.J.1997). The New Jersey Supreme Court appears to have held that federal res judicata law governs a second court's actions when the first action was brought in federal court, see Watkins v. Resorts Int'l Hotel and Casino, Inc.. 124 N.J. 398, 591 A.2d 592, 598 (1991) (“the preclusive effect of the judgment is a function of the procedures of the federal court that rendered it”); in Watkins, however, the first action had been a federal-question and not a diversity action. The New Jersey court has also stressed that New Jersey courts’ application of the entire controversy doctrine to bar a stale court action after a previous suit was brought in federal court is not binding on federal courts, stating that “our threshold is not a barrier elsewhere.” Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536, 542 (1995). See generally Stephen B. Burbank, Where’s the Beef? The Interjurisdic-tional Effects of New Jersey's Entire Controversy Doctrine, 28 Rutgers L.J. 87 (1996); Rochelle Cooper Dreyfuss & Linda J. Silberman, Interju-risdictional Implications of the Entire Controversy Doctrine, 28 Rutgers L.J. 123 (1996). . Witco's counsel was evidently referring to issue preclusion at the hearing on Lube’s motion to amend its complaint, when he stated that \"[t]here’s no question that the issues that are subject to res judicata are going to be res judica-ta in the second case.” App. 328. See also Mr. Leibowitz's arguments quoted supra at page 757." }, { "docid": "6595640", "title": "", "text": "In Holvey, administrative charges were brought against a state inmate for possession of a weapon in prison. A hearing officer found Jones guilty of that offense. Jones unsuccessfully challenged that decision administratively and then appealed to the Appellate Division of the Superior Court of New Jersey. That court reversed the decision of the hearing officer and vacated all sanctions that had been imposed on Jones. Jones then filed an action in federal court under 42 U.S.C. § 1983 in which he alleged that his right to due process had been violated in the administrative proceeding. There, as here, the district court granted the defendants’ motion for summary judgment. The court held that Jones’s federal action under section 1983 was barred by the New Jersey entire controversy doctrine and the doctrine of res judicata. “The court determined that Jones could have raised the section 1983 claim ... in the New Jersey State Court proceeding_” Id. at 829. Jones appealed to this court, and we reversed. We held: [Ujnder the entire controversy doctrine, a party will not be barred from raising claims that he could not have brought in the initial action. As the New Jersey Supreme Court has stated, if the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should not be held precluded. Id. at 831 (internal quotations and citations omitted). Here, the hearing examiner refused to hear Kelly’s First Amendment constitutional claim because that claim was not integral to the resolution of the labor dispute which was properly before the administrative body. The district court held “because Kelly had a fair opportunity to have litigated his claims before PERC, the Court finds that the entire controversy doctrine applies to the case at hand.” Kelly, 927 F.Supp. at 803. That was error. See Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J. 398, 591 A.2d 592, 599 (1991). There, the" }, { "docid": "456269", "title": "", "text": "therefore may now be brought. Section 1738 of Title 28, United States Code, requires federal courts to afford state court judgments full faith and credit. In re Genesys Data Technologies, Inc., 204 F.3d 124, 127 (4th Cir.2000). Moreover, federal courts are not allowed “to employ their own rules of res judicata in determining the effect of state judgments. Rather [§ 1738] goes beyond the common law and commands a federal court to accept the rules chosen by the States from which the judgment is taken.” Id. In fact, New Jersey applies the same analysis for res judicata as the Fourth Circuit: “(1) the judgment in the prior action must be valid, final and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one.”... Thus, if a claim could have been presented in the first action ... it will be precluded in the second action.... In addition to traditional res judicata, New Jersey has another claim preclusion theory which, ... this Court must apply: the entire controversy doctrine. While similar to res judicata principles, the entire controversy doctrine, which is unique to New Jersey, “encompasses traditional concepts of claims joinder as well as party joinder....” Thus, though the parties and the claims in the second suit may be different than those in the first suit, the second suit may nonetheless be barred because it concerns the series of transactions already at issue in the first suit. It is through this formula, which is broader than traditional res judicata, that the New Jersey Legislature, ... seeks to promote “judicial economy and efficiency by avoiding fragmented, multiple and duplicate litigation.” Sutton v. Sutton, 71 F.Supp.2d 383, 390 (D.N.J.1999), aff'd, 216 F.3d 1077 (3rd Cm. 2000) (quoting Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J. 398, 412, 591 A.2d 592 (1991) and Fornarotto v. American Waterworks Co., Inc., 144 F.3d 276, 278 (3rd Cir.1998)); accord," }, { "docid": "23177898", "title": "", "text": "obliged to entertain claims against parties that could have been joined with substantially similar claims pursued by the same plaintiffs against other parties elsewhere. Id. at 537 (emphasis added). Kaselaan expressly addressed the question we decide today, while Mortgagelinq did not. Kaselaan was decided nine months after Mortgagelinq, and, indeed, cited that opinion as supporting its holding. We find Kaselaan entirely consistent with Mortgagelinq. Accordingly, we decline defendants’ invitation that we not follow Kaselaan on the grounds that it is inconsistent with the dictates of the New Jersey Supreme Court. See General Elec. Credit Corp. of Tenn. v. Ger-Beck Mach. Co., 806 F.2d 1207, 1209 (3d Cir.1986) (“Decisions of intermediate appellate [state] courts are evidence of state law and must be given significant weight in the absence of any indication that the highest state court would rule otherwise.”) (citation omitted). Moreover, Kaselaan makes eminent sense. We have noted above the close relation between the Entire Controversy Doctrine and traditional res judicata principles. One of the prerequisites to the application of res judicata in New Jersey, as elsewhere, is the existence of a prior judgment that is final, valid, and on the merits. See Watkins v. Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 591 A.2d 592, 599 (1991); Olds v. Donnelly, 291 N.J.Super. 222, 677 A.2d 238, 243 (App.Div.), certif. granted, 146 N.J. 565, 683 A.2d 1161 (1996); see also Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981); Restatement (Second) of Judgments § 19 (1982). Although the Entire Controversy Doctrine is not identical to traditional res judicata principles, defendants have pointed to no authority for the proposition that some measure of finality is any less necessary for application of the Doctrine than it is for application of res judicata. Consistent with this reasoning and with Kaselaan, we hold that the Entire Controversy Doctrine does not preclude the initiation of a second litigation before the first action has been concluded. In so holding, we necessarily express our disapproval of Pittston Co. v. Sedgwick James of New York, No. Civ. A." }, { "docid": "10478131", "title": "", "text": "might well leave the plaintiff without a remedy. First, if Hulmes were to return to the Superior Court, seeking to reopen the second \"John Doe” action, which was dismissed without prejudice, in which the ATV manufacturer was properly named (Docket No. L-23-93), a ruling by this Court, favorable to Honda on this motion, would presumably be given preclusive effect by the State court, barring that action as tvell as the third action referred to in note 5, supra. Second, if Hulmes knew, or should have known, during the pendency of the second State court “John Doe” action, of his potential cause of action for legal malpractice against the Tomar Firm, his failure to join the Tomar Firm might forever bar his malpractice claim against it based upon the entire controversy doctrine. See Circle Chevrolet, 142 N.J. 280, 662 A.2d 509; Mystic Isle, 142 N.J. 310, 662 A.2d 523. Moreover, it is likely that the Tomar Firm cannot be joined in the present action since joinder would destroy complete diversity of citizenship. Fed.R.Civ.P. 19(a). . In order for the doctrine of res judicata, or claim preclusion, to bar a subsequent action, the following requirements must be met: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. Watkins v. Resorts Int’l Hotel & Casino, 124 N.J. 398, 412, 591 A.2d 592 (1991). The term “on the merits,” when used to describe one of the requirements of the prior judgment, has been called an \"unfortunate phrase.\" 18 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 4435, at 329 (1981). . Indeed, in speculating on circumstances such as those presented by this case, the New Jersey Supreme Court used conditional language in stating that; “in a diversity action brought in U.S. District Court in New Jersey against parties" }, { "docid": "23678853", "title": "", "text": "109 F.3d 883, 887 (3d Cir.1997). We note some initial discomfort with this description, as we believe that the entire controversy doctrine, like all preclusion doctrine, should generally be characterized as procedural. We take up Rycoline and the substance/procedure divide infra, noting here only that the Supreme Court has long instructed us that the substance/procedure line is not dispositive when federal courts must choose which sovereign’s law to apply. See Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). The defendants also point out that federal courts have occasionally applied the entire controversy doctrine to determine the effects of non-New Jersey judgments, but the parties in prior decisions have not contested the application of the doctrine. Nor have we resolved the broader issue of whether federal or state res judicata law governs successive diversity actions. See Venuto v. Witco Corp., 117 F.3d 754, 758 & n. 7 (3d Cir.1997). We have, however, decided that federal law governs the pre-clusive effect of a prior diversity judgment on a subsequent federal question case. See In re Kaplan, 143 F.3d 807, 814-15 (3d Cir.1998). We noted in Kaplan that the Supreme Court used federal law to determine the preclusive effect of a prior diversity judgment in Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946). Though the issue was not then before us, we also suggested that the rationale for applying federal preclusion law to determine the effects of a prior diversity judgment on a later federal question case was quite similar to the rationale for doing so in a later diversity case. See Kaplan, 143 F.3d at 815 n. 15. 2. Relevant Case Law We find two New Jersey decisions particularly helpful in elucidating New Jersey’s view of the entire controversy doctrine. In Watkins v. Resorts International Hotel & Casino, Inc., 124 N.J. 398, 591 A.2d 592 (N.J.1991), the New Jersey Supreme Court acknowledged the general rule that the preclusive effect of a judgment is determined by the law of the jurisdiction that rendered it, as a logical consequence of the procedures" }, { "docid": "15366994", "title": "", "text": "a federal court is compelled to apply the claim and issue preclusion law of the forum state in which the prior judgment was rendered. Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); See also Middlesex County Board of Chosen Freeholders v. State of New Jersey Dept. of Environmental Protection, 645 F.Supp. 715, 719 (D.N.J.1986); Printing Mart-Morristown, Inc. v. Rosenthal, 650 F.Supp. 1444, 1449 (D.N.J.1987). The preclusive effect of the state court judgment against T & E must therefore be determined by reference to the law of New Jersey. New Jersey has adopted the “entire controversy doctrine”, which sets forth a broad policy against claim splitting. New Jersey Court Rule 4:27-l(b). The doctrine, a near relative to the doctrine of res judicata, requires a party to assert all possible claims related to a single controversy in the same action or be barred from raising them in future actions. Id.; Falcone v. Middlesex County Medical Society, 47 N.J. 92, 219 A.2d 505 (1966). The Third Circuit in reviewing New Jersey’s entire controversy doctrine has noted that it “reaches more broadly than the ‘same cause of action’ requirement of traditional res judicata doctrine” ... [and] ... is instead a “transaction-based” doctrine. Printing Mart-Morristown, Inc., supra, at 1447. Moreover, the entire controversy doctrine precludes subsequent litigation not only of those claims previously litigated, but of all claims arising out of the same controversy that could have been raised in the earlier action. Id., citing Melikian v. Corradetti, 791 F.2d 274, 279 (3rd Cir.1986) (emphasis in original). Although there seems to be no dispute that the present claim arises out of the same “series of transactions” that gave rise to plaintiff’s state claim, this Court finds it significant that the entire controversy doctrine precludes subsequent litigation only of those claims which could have been raised in the earlier action. See Ayers v. Jackson Township, 106 N.J. 557, 583, 525 A.2d 287 (1987) (indicating doctrine inapplicable where claim could not have been joined); See also Middlesex County Board of Chosen Freeholders v. N.J., 645" }, { "docid": "23678854", "title": "", "text": "question case. See In re Kaplan, 143 F.3d 807, 814-15 (3d Cir.1998). We noted in Kaplan that the Supreme Court used federal law to determine the preclusive effect of a prior diversity judgment in Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946). Though the issue was not then before us, we also suggested that the rationale for applying federal preclusion law to determine the effects of a prior diversity judgment on a later federal question case was quite similar to the rationale for doing so in a later diversity case. See Kaplan, 143 F.3d at 815 n. 15. 2. Relevant Case Law We find two New Jersey decisions particularly helpful in elucidating New Jersey’s view of the entire controversy doctrine. In Watkins v. Resorts International Hotel & Casino, Inc., 124 N.J. 398, 591 A.2d 592 (N.J.1991), the New Jersey Supreme Court acknowledged the general rule that the preclusive effect of a judgment is determined by the law of the jurisdiction that rendered it, as a logical consequence of the procedures of the issuing court. See id. at 598. This rule affects the application of the entire controversy doctrine in New Jersey state court. Only in “limited circumstances” may the doctrine preclude an action not otherwise precluded by the res judicata effects of a federal decision. See id. at 598-99. The court held that it was essential to consider the federal law of claim preclusion in determining whether to apply the entire controversy doctrine, as an equitable matter, in state court cases. See id. at 599. Watkins thus suggests that New Jersey recognizes the interests of other jurisdictions that have differing preclusion doctrines. In Mortgagelinq Corp. v. Commonwealth Land Title Ins. Co., 142 N.J. 336, 662 A.2d 536 (N.J.1995), the New Jersey Supreme Court applied the entire controversy doctrine to a plaintiff who had previously sued on the same underlying facts in the federal District Court for the Eastern District of Pennsylvania. Almost a year earlier, a mortgage lender had brought an action in the latter court against Pennsylvania-based companies and individuals who were allegedly the" }, { "docid": "194616", "title": "", "text": "entire controversy doctrine “shall result in the preclusion of the claims to the extent required by the entire controversy doctrine-” Id. (quoting N.J.R. Court 4:30A). New Jersey courts have held that the entire controversy doctrine, like res judicata, is fully applicable to default judgments. See, e.g., Mori v. Hartz Mountain Development Corp., 193 N.J.Super. 47, 55, 472 A.2d 150 (App.Div.1983). However, a party will not be barred from raising additional claims in a subsequent proceeding if he was unable to assert these claims in the initial proceeding. See Harley Davidson, 150 N.J. at 494, 696 A.2d 666. For example, the party may have been barred from raising the claim because the court in the prior proceeding lacked jurisdiction over the claim. See Watkins v. Resorts Intern. Hotel & Casino, 124 N.J. 398, 413, 591 A.2d 592 (1991) (quoting Restatement (Second) of Judgments § 25 cmt. E (1982)) (instructing that if “‘the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground ... then a second action in a competent court presenting the omitted theory or ground should be held not precluded.’”). Another such situation arises when the claims are either “ ‘unknown, unarisen, or unaccrued at the time of the original action.’” Harley Davidson, 150 N.J. at 494, 696 A.2d 666 (quoting Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 323, 662 A.2d 523 (1995)). Applying these well-established principles of New Jersey jurisprudence to the facts presented by the instant case, it is clear that the entire controversy doctrine does not preclude Hawkins from asserting that his judgment debt is dischargeable. The New Jersey state court proceeding dealt exclusively with the issue of whether plaintiff-creditor suffered injuries due to defen dant-debtor’s actions. The issue of whether Hawkins’ actions during the altercation constituted willful and malicious acts as defined by Section 523(a)(6) of the Bankruptcy Code was “ ‘unknown, unarisen, or unaccrued at the time of the original action.’ ” Id. Hawkins voluntarily filed for Chapter 7 bankruptcy protection months subsequent to the entry of the default judgment against him." }, { "docid": "194605", "title": "", "text": "once fairly litigated and determined it is no longer open to litigation.’” Culver v. Insurance Company of North America, 115 N.J. 451, 460, 559 A.2d 400 (1989) (quoting Lubliner v. Board of Alcoholic Beverage Control, 33 N.J. 428, 435, 165 A.2d 163 (I960)). The policies supporting this doctrine are patent. “Res judicata ... encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.” Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Both New Jersey and federal law apply res judicata or claim preclusion when three circumstances are present: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. Hulmes v. Honda Motor Co., 924 F.Supp. 673, 682 n. 12 (D.N.J.1996) (quoting Watkins v. Resorts Int’l Hotel and Casino, Inc., 124 N.J. 398, 412, 591 A.2d 592 (1991)). To determine whether the claim or defense in the subsequent proceeding derives from the same transaction as the claim or defense in the prior proceeding as required by the third prong of the above test, New Jersey courts consider the following four factors: (1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions) ...; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first) ...; and (4) whether the material facts alleged are the same. Culver, 115 N.J. at 461-62, 559 A.2d 400 (citations omitted). It is black letter law in this State that a default judgment is a final judgment which bars all further litigation. See In re Crispino, 160" } ]

[ { "docid": "8171882", "title": "", "text": "this motion from the time the settlement with Lubrizol was reached until May 1982 so unreasonable as to constitute waiver. As Sounion’s counsel points out, the settlement with Lubrizol was finally effected in April 1982, only a short time before this motion was filed. Affidavit of Robert Zapf, sworn to June 17,1982, ¶ 3. More troublesome, however, is a question PTI did not raise: whether Sounion’s actions in moving for summary judgment before this Court (and, in the event summary judgment is denied, for a stay pending arbitration), are inconsistent with its arbitration rights. The Court must conclude that they are. Sounion, in moving for summary judgment, asks this Court to be the final arbiter of the dispute, at the same time demanding arbitration if it does not get the judgment it seeks. Sounion could have sought arbitration first, and made its substantive arguments to the arbitrators instead of to this Court. Nevertheless, the Court will order arbitration. For “[i]t is not ‘inconsistency,’ but the presence or absence of prejudice which is determinative of the issue [of waiver].” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). See Gavlik Constr. Co. v. H.F. Campbell Co., supra, 526 F.2d at 783; American Broadcasting Cos., Inc. v. Ali, supra, 434 F.Supp. at 1112. There is no evidence that PTI has been prejudiced by virtue of its participation in this action, or by its defense of this motion. In fact, the opposite may well be true. Therefore, the Court will order the parties to submit to arbitration of their cross claims. Finally, Sounion has requested that, if arbitration is ordered, the Court also order that the dispute be submitted to the same panel that heard the earlier dispute between these parties, since they are most familiar with the issues. However, the Court has concluded that the issues in this case are significantly different from those presented to the arbitrators earlier, and in any event is not persuaded by Sounion’s argument. Sounion’s request for the same panel is denied; accordingly, the panel should be selected in the manner provided for in the" } ]

[ { "docid": "7794945", "title": "", "text": "461 F.2d 1009 (2d Cir.1972); Lubrizol Intern., S.A. v. M/V Stolt Argobay, 562 F.Supp. 565 (S.D.N.Y.1982). The rule in this Circuit is that a party may waive its right to arbitration by actively participating in a lawsuit in a manner inconsistent with the right to arbitration such that there is prejudice to the other party. The element of prejudice is determinative. See Demsey & Associates, supra; Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968); Lubrizol Intern., supra. Courts have found prejudice wheré a party seeking arbitration has taken advantage of discovery that would not be available in an arbitration proceeding, Carcich, supra, at 696; where a party has caused substantial expense and loss of time by continuing litigation instead of demanding arbitration, Demsey, supra, at 1018; and where a party has advanced so far in court proceedings before seeking arbitration that permitting arbitration would effectively allow a party sensing an adverse decision a second chance in another forum, Jones Motor Co., supra, at 43. Oppenheimer’s extensive involvement over the course of eight months in the litigation, including taking rather extensive discovery, bringing a motion to dismiss, and posing thirteen affirmative defenses to the amended complaint, all without raising the right to arbitration, constitutes prejudice to Rush and a waiver of the right to arbitrate. These actions, were they to be followed by arbitration, would have caused unnecessary cost and delay to Rush. Further, Oppenheimer has sought to shift the forum for resolution of the state claims only after this court reinstated the punitive damages aspect of those claims. Having litigated an issue and having obtained a decision adverse to its interests on a critical issue of its exposure to damages, Oppenheimer cannot now shift the forum of this dispute without causing prejudice to Rush. Oppenheimer’s motion to compel arbitration of the state claims is denied. Discovery in this case shall be completed by May 22, 1985 and a joint pretrial order submitted by May 29, 1985. IT IS SO ORDERED." }, { "docid": "23181288", "title": "", "text": "Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985), and that waiver of the right to arbitration “is not to be lightly inferred.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). To avoid waiver, however, it is not enough merely to assert a right without, taking appropriate steps to secure it. Waiver will be inferred when a party engages in protracted litigation that results in prejudice to the opposing party. Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991) (citing Com-Tech Assocs. v. Computer Assocs. Int’l, Inc., 938 F.2d 1574, 1576 (2d Cir.1991)); see Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 263 (2d Cir.1990). Sufficient prejudice to infer waiver has been found when a party seeking to compel arbitration engages in .discovery procedures not available in arbitration, Liggett & Myers Inc. v. Bloomfield, 380 F.Supp. 1044, 1047-48 (S.D.N.Y.1974), makes motions going to the merits of an adversary’s claims, Com-Tech, 938 F.2d at 1576, or delays invoking arbitration rights while the adversary incurs unnecessary delay or expense, Kramer, 943 F.2d at 179. The waiver determination necessarily depends upon the facts of the particular case and is not susceptible to bright line rules. Id. In the present case, Slone was fully aware of his alleged right to compel arbitration, having raised it three times: in his motion to compel arbitration made at the outset of the litigation, in his answer (according to the appellate briefs), and in his motion for reconsideration of the denial of his motion to compel arbitration. Slone was also demonstrably familiar with the Federal Arbitration Act, which he cited numerous times in his submissions to the district court. Yet he failed to use section 16(a) of the Act to obtain immediate interlocutory appellate review of the denial of his motion to compel arbitration. See 9 U.S.C. § 16(a)(1). Instead, Slone actively litigated this dispute in federal court. Discovery was conducted by both parties, with Slone initiating at least two depositions, including those of Cotton and her expert witness. Slone made several substantive motions, including one for summary judgment. In resisting discovery," }, { "docid": "22423255", "title": "", "text": "328 A.2d 498, 500 (1974); Hussey Metal Division v. Lectromelt Furnace Division, 471 F.2d 556, 558 (3d Cir. 1973). The United States Arbitration Act, 9 U.S.C. § 1 et seq., embodies the favorable federal attitude to arbitration in the commercial context. See also Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See, e. g., Demsey & Associates, Inc. v. S.S. Sea Star, supra; American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 320 (6th Cir. 1950); E. C. Ernest, Inc. v. Manhattan Construction Co., 387 F.Supp. 1001, 1033 (S.D.Ala. 1974); Liggett & Myers Inc. v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974); Sulphur Export Corp. v. Carribean Clipper Lines, Inc., 277 F.Supp. 632, 634 (E.D.La.1968). . 9 U.S.C. § 3 provides: If any suit or proceeding be brought in any of the courts of the United States upon any tissue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. . The Supreme Court held in Bernhardt v. Polygraphic Co., 350 U.S. 198, 202, 76 S.Ct. 273, 100 L.Ed. 199 (1956), that a federal court’s power under 9 U.S.C. § 3 only extends to those contracts within the scope of 9 U.S.C. §§ 1, 2. Section 2 covers “any maritime transaction or a contract evidencing a transaction involving commerce.” . 5 P.S. § 162 provides: If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall, on application of one of the parties made" }, { "docid": "18268754", "title": "", "text": "of a stay order here. Relying on Pollux Marine, Mitsui argues that its stay opposition has been wasted because C&H’s delayed joinder “moots” that effort. In that case, a petitioner sought to compel arbitration in accordánce with the terms of a charter party. The respondent contested both the charter party and the arbitration clause. See 455 F.Supp. at 214 n.3. For nearly six months the respondent “refused to arbitrate and actively opposed the instant petition, through extensive discovery, briefings, affidavits and several court appearances.” Id. at 214. Four days before the scheduled trial in which the court was to determine whether a charter party had been formed, the respondent “admitted” the existence of an arbitration agreement and filed an amended answer requesting that the charter party question be referred to arbitration. The court struck this pleading. Discussing the propriety of leave to amend, it found prejudice because the last minute reversal might have mooted the lively efforts of the parties in seeking a court determination of the charter party question. Id. at 216. The Pollux Marine holding surely mitigates against C&H’s argument that the waiver issue should be referred to arbitration. The Court has rejected that argument, however, and is deciding the issue tendered to it by the parties. As these cases reflect, courts must insure that duplication of effort in separate forums is minimized. If an objecting party can demonstrate concretely that such duplication would result from a belated attempt. to obtain a stay, prejudice will likely be found. E. g., Demsey, supra, 461 F.2d at 1018 (arbitration sought after case fully tried); American Locomotive v. Chemical Res. Corp., 171 F.2d 115, 118 (6th Cir. 1948) (stay sought after nearly eight years of protracted litigation), cert, denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir. 1938) (stay sought on day of trial). Mitsui has not made such a showing. Nor has the plaintiff shown that it will suffer concrete harm in the arbitration forum as a result of the litigation activity. It argues that" }, { "docid": "22858577", "title": "", "text": "(1972). Clearly, the policies underlying the federal arbitration act favor enforcement of agreements to arbitrate disputes. See In re Conticommodity Services Inc., 613 F.2d 1222, 1224-25 (2d Cir.1980) (quoting 9 U.S.C. § 4). Given this dominant federal policy favoring arbitration, waiver of the right to compel arbitration due to participation in litigation may be found only when prejudice to the other party is demonstrated. Demsey & Associates, Inc. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir.1972); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). “Waiver * * * is not to be lightly inferred, and mere delay in seeking a stay of the proceedings without some resultant prejudice to a party * * * cannot carry the day.” Id. (citation omitted); see also Weight Watchers of Quebec Ltd. v. Weight Watchers International, Inc., 398 F.Supp. 1057, 1058-59 (E.D.N.Y.1975). Nevertheless, we have recently reaffirmed “that the litigation of substantial issues going to the merits may constitute a waiver of arbitration”, Sweater Bee By Banff, Ltd. v. Manhattan Industries, Inc., 754 F.2d 457, 461 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 68, 88 L.Ed.2d 55 (1985), and in reliance upon this principle Judge Sweet below reasoned that “Oppenheimer’s extensive involvement over the course of eight months in the litigation, including taking rather extensive discovery, bringing a motion to dismiss, and posing thirteen affirmative defenses to the amended complaint, all without raising the right to arbitration, constitutes prejudice to Rush and a waiver of the right to arbitrate.” We disagree, however, because on this record none of the factors cited by the district court, whether viewed individually or in combination, warrants a finding of waiver of arbitration. A. Expense and Delay It is beyond question that defendants’ delay in seeking arbitration during approximately eight months of pretrial proceedings is insufficient by itself to constitute a waiver of the right to arbitrate, for in addition, prejudice to Rush must be demonstrated. See Carcich, 389 F.2d at 696. The Supreme Court, when it rejected the intertwining doctrine, noted that: “The legislative history of the Act establishes that the" }, { "docid": "23405621", "title": "", "text": "filed answer denying liability and counterclaims, attempted to implead parties, and allowed taking of two depositions before demanding arbitration); J. & S. Construction Co., Inc. v. Travelers Indemnity, 520 F.2d 809 (1st Cir.1975) (defendant answered, demanded jury trial, answered interrogatories, permitted depositions, and waited thirteen months to move for stay without waiving right to arbitrate); Hilti, Inc. v. Oldach, 392 F.2d 368 (1st Cir.1968) (right to arbitrate not waived by answering complaint on merits, participating in extensive discovery, and waiting nearly two years to demand arbitration particularly when defendant had initially moved for dismissal based on arbitration clause and asserted as special defense in its answer that certain claims were arbitrable); Carcich v. Rederi A/B NORDIE, 389 F.2d 692 (2d Cir.1968) (third-party defendant participated in pre-trial procedures two years before requesting stay without waiving right to arbitration); American Dairy Corp. v. Tantillo, 536 F.Supp. 718 (M.D.La.1982) (defendants filed counterclaim, answered plaintiff’s interrogatories, filed interrogatories and motion for production, and waited nine months before filing motion to stay); but cf. Cornell & Co., Inc. v. Barber and Ross Co., 360 F.2d 512 (D.C.Cir.1966) (defendant waived right to arbitrate when it moved for transfer of venue, filed answer to complaint, counterclaim, and notice of depositions, took deposition of officer of plaintiff’s company, and procured production of various records and documents over four-month period before communicating intent to arbitrate). Appellee also contends that it has been prejudiced by appellant’s participation in the litigation in two ways. First, it contends that Davy has taken advantage of substantial judicial discovery procedures not available in arbitration. The Second Circuit has indicated, in a case in which it found no waiver of the right to arbitrate, that the taking of unfair advantage of discovery proceedings which would not have been available in arbitration might constitute sufficient prejudice to infer waiver. Carcich v. Rederi A/B NORDIE, 389 F.2d 692, 696 & 696 n. 7 (2d Cir.1968) (citing cases in which party instituting suit utilized discovery proceedings). However, when only a minimal amount of discovery has been conducted, which may also be useful for the purpose of arbitration, the" }, { "docid": "20093280", "title": "", "text": "be considered in turn. A. Waiver of Arbitration In Rush v. Oppenheimer & Co., 779 F.2d 885 (2d Cir.1985), the Second Circuit stated that due to the strong federal policy favoring arbitration, waivers of arbitration will not be “lightly inferred.” Rush, supra, 779 F.2d at 887 (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968)). In fact, the Supreme Court has noted that in all disputes over the propriety of arbitration, any doubts should be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The rule set out by the Second Circuit in Rush is that “waiver of the right to compel arbitration due to participation in the litigation may be found only when prejudice to the other party is demonstrated.” Rush, supra, 779 F.2d at 885, citing Demsey & Associates, Inc. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir.1972) and Carcich, supra, 389 F.2d at 696. For example, “[Ljitigation of substantial issues going to the merits may constitute a waiver of arbitration.” Sweater Bee By Banff v. Manhattan Industries, 754 F.2d 457, 461 (2d Cir. 1985) (citing Demsey, supra, 461 F.2d at 1017-18 and Weight Watchers, Ltd. v. Weight Watchers International, Inc., 398 F.Supp. 1057, 1058-62 (E.D.N.Y.1975)). In Rush, the plaintiff commenced a lawsuit in federal court alleging securities fraud despite an arbitration agreement between the parties. The complaint was filed on May 10, 1984. On December 31, defendant moved to compel arbitration. The District Court held that defendant had waived the right to arbitrate: “Oppenheimer’s extensive involvement over the course of eight months in the litigation, including taking rather extensive discovery, bringing a motion to dismiss, and posing thirteen affirmative defenses to the amended complaint, all without raising the right to arbitration, constitutes prejudice to Rush and a waiver of the right to arbitrate.” Rush v. Oppenheimer, 606 F.Supp. 300, 301 (S.D.N.Y.1985) (Sweet, J.). The Second Circuit reversed, however, holding that “none of the factors cited by the district court, whether viewed individually or in" }, { "docid": "18268755", "title": "", "text": "Marine holding surely mitigates against C&H’s argument that the waiver issue should be referred to arbitration. The Court has rejected that argument, however, and is deciding the issue tendered to it by the parties. As these cases reflect, courts must insure that duplication of effort in separate forums is minimized. If an objecting party can demonstrate concretely that such duplication would result from a belated attempt. to obtain a stay, prejudice will likely be found. E. g., Demsey, supra, 461 F.2d at 1018 (arbitration sought after case fully tried); American Locomotive v. Chemical Res. Corp., 171 F.2d 115, 118 (6th Cir. 1948) (stay sought after nearly eight years of protracted litigation), cert, denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir. 1938) (stay sought on day of trial). Mitsui has not made such a showing. Nor has the plaintiff shown that it will suffer concrete harm in the arbitration forum as a result of the litigation activity. It argues that the defendants have gained an unwarranted advantage through discovery, but does not show how the documents it produced will impair its case in arbitration. See Shinto Shipping, supra, 572 F.2d at 1330. It has not shown, moreover, that these materials would have been unavailable to defendants through the arbitration process. If discovery had been substantial, the Court might presume that prejudice exists. See Liggett & Myers, Inc. v. Bloomfield, 380 F.Supp. 1044, 1047-48 (S.D.N.Y.1974) (thousands of pages of deposition testimony and hundreds of documents). But the Court cannot base such a presumption on the limited discovery that has occurred to date. If the discovery record is sparse, an objecting party must show specifically how its case has been impaired. Absent such a showing, the strong policy favoring arbitration controls. The law is clear that waiver “is not to be lightly inferred.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). See Hilti, Inc., supra, 392 F.2d at 372 n.9 (“The cases demonstrate with marked consistency the reluctance of courts to find default" }, { "docid": "23405622", "title": "", "text": "and Ross Co., 360 F.2d 512 (D.C.Cir.1966) (defendant waived right to arbitrate when it moved for transfer of venue, filed answer to complaint, counterclaim, and notice of depositions, took deposition of officer of plaintiff’s company, and procured production of various records and documents over four-month period before communicating intent to arbitrate). Appellee also contends that it has been prejudiced by appellant’s participation in the litigation in two ways. First, it contends that Davy has taken advantage of substantial judicial discovery procedures not available in arbitration. The Second Circuit has indicated, in a case in which it found no waiver of the right to arbitrate, that the taking of unfair advantage of discovery proceedings which would not have been available in arbitration might constitute sufficient prejudice to infer waiver. Carcich v. Rederi A/B NORDIE, 389 F.2d 692, 696 & 696 n. 7 (2d Cir.1968) (citing cases in which party instituting suit utilized discovery proceedings). However, when only a minimal amount of discovery has been conducted, which may also be useful for the purpose of arbitration, the court should not ordinarily infer waiver based upon prejudice to the party opposing the motion to stay litigation, American Dairy Queen Corp. v. Tantillo, 536 F.Supp. 718, 721-22 (M.D.La.1982) (minimal discovery conducted during nine-month period between filing of suit and motion to stay pending arbitration, which was limited to matters pertaining to arbitration, not of such magnitude that either party had been prejudiced), particularly when, as here, the defendant clearly stated the desire to arbitrate the matter in its original answer and continued to assert the desire for arbitration during the discovery process. Appellee also contends that it has been prejudiced because of the time and expense of preparing for trial. However, as appellant points out, appellee was put on notice as to the fact that appellant desired arbitration at the time its answer was filed; less than five months later, during which only the defendant’s preliminary interrogatories and request for production were issued and answered, Davy moved to stay proceedings; appellant had no control over the timing of the taking up of its motion" }, { "docid": "14156243", "title": "", "text": "of arbitration bears a heavy burden of proof.” Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir.1982) (and cases cited therein). A party opposing arbitration must also demonstrate that he had been prejudiced by the delay. See Gavlick Construction Co. v. H.F. Campbell Co., 526 F.2d 777, 783 (3rd Cir.1975); Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2nd Cir.1968). This Plaintiff has failed to do. The pretrial discovery conducted in this case cannot have prejudiced the Plaintiff in that the discovery does not appear to have been extensive. The record indicates that since the institution of this litigation there has only been one deposition taken and it was noticed by the Plaintiff. While the Defendant propounded interrogatories and has served a production request, the discovery has been limited to the issues of the Resorts International trade. There has been no discovery of the alleged wrongdoings set forth in the second amended complaint with the exception of the aforesaid trade. In Mitsui & Co. Inc. v. C & H Refinery, Inc., 492 F.Supp. 115 (N.D.Cal.1980) the district court upheld one party’s right to arbitrate claims notwithstanding discovery initiated by both parties. The court opined: “If the discovery record is sparse, an objecting party must show specifically how its case has been impaired. Absent such a showing, the strong policy favoring arbitration controls.” Id. at 120. Since the Plaintiff here has not made a specific showing of prejudice, the Defendant is entitled to invoke its contract right. III. Plaintiff’s second argument against arbitration was based upon the Eleventh Circuit doctrine of “intertwining” — a doctrine that was recently rejected by the Supreme Court in Dean Witter, Reynolds v. Byrd, 470 U.S. -, 105 S.Ct. 1238, 84 L.Ed.2d 158 (March 4, 1985). In that case, the Supreme Court found that a District Court is required to compel arbitration under the Federal Arbitration Act “even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” According to the Court: By its terms, the Act leaves no place for the exercise of discretion" }, { "docid": "22423236", "title": "", "text": "§ 1291, as required by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., supra at 546, 69 S.Ct. at 1226, we hold the district court’s denial of consolidation an appeal-able final decision. IV. WAIVER Gavlik argues that Campbell waived its contractual right to arbitrate when it filed a third-party complaint against Wickes and then attempted to consolidate the Gavlik and Dunn actions pending in the district court. The district court interpreted these acts as “certainly not waiver but ... a procedurally sound attempt to achieve a desired result.” Gavlik Construction Co. v. H. F. Campbell Co., 389 F.Supp. 551, 553 (W.D. Pa.1975). Under both federal and Pennsylvania law, arbitration is a favored policy for the resolution of disputes. Therefore waiver “is not to be lightly inferred. . . . ” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). We believe it is not the inconsistency of a party’s actions, “but the presence or absence of prejudice which is determinative of the issue” of waiver. Id. In Demsey & Associates, Inc. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir. 1972), citing Carcich, supra, the Second Circuit stated that [mjerely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not necessarily constitute a waiver. Recent cases have only found waiver where the demand for arbitration came long after the suit commenced and when both parties had engaged in extensive discovery. Here Campbell moved for a stay pending arbitration immediately after removing the Gavlik action' to federal court. Campbell has not answered Gavlik’s complaint and neither party has commenced discovery. Most importantly, Gavlik has failed to show any prejudice resulting from Campbell’s actions in filing a third-party complaint and moving for a consolidation of the Dunn and Gavlik suits. The Second Circuit test of waiver, Carcich v. Rederi A/B Nordie, supra, is persuasive in these circumstances. Tested by the presence or absence of prejudice, we agree with the district court that Campbell’s minimal procedural actions did not waive its right to arbitrate. V. POWER TO STAY PROCEEDINGS Campbell" }, { "docid": "776790", "title": "", "text": "Oppenheimer & Co., 606 F.Supp. 300, 301 (S.D.N.Y.1985). In keeping with the policy that a waiver should not be easily inferred, mere delay will not justify a finding of waiver absent a showing of prejudice. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). Prejudice has been found when (1) a party that seeks arbitration engages in extensive discovery that is not available in arbitration; (2) when the party seeking arbitration causes extensive expense and delay by litigating continuously in court before seeking arbitration; and (3) when a party has continued so far in the litigation that a chance to arbitrate after sensing an adverse decision would in effect give that party another chance in a second forum. Rush v. Oppenheimer & Co., 606 F.Supp. at 301. In the instant case, plaintiffs filed their complaint on March 8, 1985. Defendants filed this motion on May 13. Discovery has not begun. Thus defendants have not actively engaged in the lawsuit and the only “prejudice” plaintiffs claim is the two-month delay. Such a delay is not of sufficiently serious nature to constitute prejudice as described in Oppenheimer and Carcich. Cf. Evans v. Syracuse City School Dist., 704 F.2d 44, 47 (2d Cir.1983) (prejudice resulted when defendant raised res judicata defense after two pre-trial conferences, six days before the pre-scheduled trial date, and two years and nine months after the time when the defense could have been properly raised). Having determined that defendants have not waived their right to arbitrate, the court finds it unnecessary for defendants to amend their complaint. It is well established that a defendant may raise the substance of affirmative defenses in pre-trial motions. 5 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure (Civil) 111278, at 344 (2d ed. 1985). D. Arbitration Agreements as Contracts of Adhesion Plaintiff Mockridge argues that the arbitration agreement operates as a contract of adhesion, and thus should not be enforced against the plaintiff. This argument, in this particular case, is insubstantial. Contracts of adhesion arise when a standardized form of agreement, usually drafted by the party having superi-" }, { "docid": "776789", "title": "", "text": "Failure to Raise an Affirmative Defense as Bars to Arbitration Plaintiffs Finkle and Ross raise two further issues that purportedly foreclose the arbitration of both the state and federal claims. Plaintiffs claim that (1) defendants have not fulfilled the conditions precedent to arbitration which were enumerated in the Arbitration Agreement, and (2) defendants have waived the defense of arbitration by not raising it as an affirmative defense in their answer. Plaintiffs’ first argument is easily dismissed. It is well established that procedural issues such as the fulfilling of conditions precedent to arbitration are decided by the arbitrator. Ottley v. Sheepshead Nursing Home, 688 F.2d 888, 890 (2d Cir.1982); Corporate Printing Co. v. New York Typographical Union No. 6, 601 F.Supp. 323, (S.D.N.Y.1984), aff'd mem., 767 F.2d 907 (2d Cir.1985). Plaintiffs Finkle and Ross’ second argument is also without merit. For a party to waive its right to arbitrate, it must actively participate in a lawsuit “in a manner inconsistent with the right to arbitrate such that there is prejudice to the other party.” Rush v. Oppenheimer & Co., 606 F.Supp. 300, 301 (S.D.N.Y.1985). In keeping with the policy that a waiver should not be easily inferred, mere delay will not justify a finding of waiver absent a showing of prejudice. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). Prejudice has been found when (1) a party that seeks arbitration engages in extensive discovery that is not available in arbitration; (2) when the party seeking arbitration causes extensive expense and delay by litigating continuously in court before seeking arbitration; and (3) when a party has continued so far in the litigation that a chance to arbitrate after sensing an adverse decision would in effect give that party another chance in a second forum. Rush v. Oppenheimer & Co., 606 F.Supp. at 301. In the instant case, plaintiffs filed their complaint on March 8, 1985. Defendants filed this motion on May 13. Discovery has not begun. Thus defendants have not actively engaged in the lawsuit and the only “prejudice” plaintiffs claim is the two-month delay. Such a delay is" }, { "docid": "4197509", "title": "", "text": "468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber & Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). Since there is a strong federal policy favoring arbitration, id., a waiver “is not to be lightly inferred, and mere delay in seeking a stay of the proceedings with out some resultant prejudice to a party . cannot carry the day.” Car-cich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2 Cir. 1968) (citation and footnotes omitted); Liggett & Myers Incorporated v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974). And where, as here, the issue of waiver turns on the significance of actions taken in a judicial forum, the issue is one for the court, rather than the arbitrator, to decide. See In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y. 1966). General formulations of what constitutes a waiver in a particular case are of limited usefulness, as the decision normally turns not on some mechanical act but on all the facts of the case. Carolina Throwing Company v. S & E Novelty Corporation, 442 F.2d 329, 330-31 (4 Cir. 1971); Burton-Dixie Corporation v." }, { "docid": "23181287", "title": "", "text": "district court granted Cotton’s motion for default. In her application for judgment upon default, Cotton sought damages of $45,000 and attorney’s fees of $47,583. Slone filed no objection. The district court awarded Cotton damages of $40,000 plus post-judgment interest, but denied- an award of-attorney’s fees, stating only that “[t]he court has determined, in the exercise of its discretion, that an award of attorney’s fees is not appropriate in this case.” After entry of the default judgment, Slone filed a notice of appeal, retained counsel, and now seeks review of the district court’s denial of Slone’s motion to compel arbitration and stay proceedings pending arbitration. Cotton responds by arguing, among other things, that, even if Slone once had a right to compel arbitration, he waived that right by failing to take a timely appeal and by causing substantial prejudice to Cotton by his active participation in the lawsuit. Cotton also cross-appeals the district court’s denial of attorney’s fees. ' DISCUSSION I. Waiver We have emphasized that there is a strong presumption in favor of arbitration, see Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985), and that waiver of the right to arbitration “is not to be lightly inferred.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968). To avoid waiver, however, it is not enough merely to assert a right without, taking appropriate steps to secure it. Waiver will be inferred when a party engages in protracted litigation that results in prejudice to the opposing party. Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991) (citing Com-Tech Assocs. v. Computer Assocs. Int’l, Inc., 938 F.2d 1574, 1576 (2d Cir.1991)); see Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 263 (2d Cir.1990). Sufficient prejudice to infer waiver has been found when a party seeking to compel arbitration engages in .discovery procedures not available in arbitration, Liggett & Myers Inc. v. Bloomfield, 380 F.Supp. 1044, 1047-48 (S.D.N.Y.1974), makes motions going to the merits of an adversary’s claims, Com-Tech, 938 F.2d at 1576, or delays invoking arbitration rights while the adversary incurs unnecessary delay or expense, Kramer, 943" }, { "docid": "18268756", "title": "", "text": "the defendants have gained an unwarranted advantage through discovery, but does not show how the documents it produced will impair its case in arbitration. See Shinto Shipping, supra, 572 F.2d at 1330. It has not shown, moreover, that these materials would have been unavailable to defendants through the arbitration process. If discovery had been substantial, the Court might presume that prejudice exists. See Liggett & Myers, Inc. v. Bloomfield, 380 F.Supp. 1044, 1047-48 (S.D.N.Y.1974) (thousands of pages of deposition testimony and hundreds of documents). But the Court cannot base such a presumption on the limited discovery that has occurred to date. If the discovery record is sparse, an objecting party must show specifically how its case has been impaired. Absent such a showing, the strong policy favoring arbitration controls. The law is clear that waiver “is not to be lightly inferred.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). See Hilti, Inc., supra, 392 F.2d at 372 n.9 (“The cases demonstrate with marked consistency the reluctance of courts to find default despite substantial delay and intervening proceedings.”). Mitsui has not made the convincing showing needed to sustain its burden. At best, the record permits an inference of prejudice to be drawn. Prejudice cannot be shown by inference alone. Examining the facts in light of the strong policy favoring arbitration, the Court must resolve all doubts against the objecting party. The Court concludes, therefore, that Mitsui can proceed in arbitration at this time without prejudice to its case. C&H has not waived its right to obtain a stay. Accordingly, this action is stayed pending arbitration in accordance with the oil sale contract. . Mitsui is a New York corporation; C&H, a Wyoming corporation. Delivery was to be made in Indonesia. . The Coastal States defendants are Pacific Refining Company and Coastal States Trading, Inc. . In alternate counts, Mitsui bases the same facts on theories of estoppel, interference with contract relations, and fraud. . The complaint had named Coastal States Gas Corporation and CIC Industries, Inc., as additional defendants. . Prior to the filing of the amended" }, { "docid": "4197510", "title": "", "text": "& Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). Since there is a strong federal policy favoring arbitration, id., a waiver “is not to be lightly inferred, and mere delay in seeking a stay of the proceedings with out some resultant prejudice to a party . cannot carry the day.” Car-cich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2 Cir. 1968) (citation and footnotes omitted); Liggett & Myers Incorporated v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974). And where, as here, the issue of waiver turns on the significance of actions taken in a judicial forum, the issue is one for the court, rather than the arbitrator, to decide. See In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y. 1966). General formulations of what constitutes a waiver in a particular case are of limited usefulness, as the decision normally turns not on some mechanical act but on all the facts of the case. Carolina Throwing Company v. S & E Novelty Corporation, 442 F.2d 329, 330-31 (4 Cir. 1971); Burton-Dixie Corporation v. Timothy McCarthy Construction Company, 436 F.2d 405, 408 (5 Cir. 1971). The factors upon which the waiver question appears to have turned most frequently against the party seeking to compel arbitration are his dilatory conduct in seeking arbitration, usually coupled with his gaining of an undue advantage in the judicial forum or other substantial prejudice to the opposing party, or any other actions taken by the moving party which are sufficiently inconsistent with his seeking arbitration. Examining the circumstances of a particular case, it is usually the absence of one or more of these factors that forms the basis for concluding there has been no waiver. In concluding that a waiver has occurred in this case, the court finds delay, prejudice and inconsistency all to be present. The procedural history of this case began with the filing of a complaint in July 1973, and the answer within six weeks thereafter, making no reference to arbitration. About four months later plaintiffs initiated discovery with a request for production of documents. Defendants did not comply with the" }, { "docid": "20093279", "title": "", "text": "of the “significant losses” alleged in the complaint, all bank statements, and all state and federal tax returns. In response, plaintiffs claim to have transferred over 1000 pages of documents to defendants’ counsel. Russo Affidavit, 118. The depositions of both Mr. and Mrs. Russo were also scheduled, but they never took place. On May 2, 1989, defendants’ present counsel were substituted for Myerson and Kuhn. During the final week of May, defendants’ new counsel learned of the Client Agreement entered into by plaintiffs during the combination of Shearson Lehman and E.F. Hutton. It was at this time only that counsel became aware of the arbitration clause. Affidavit of Matthew Farley, Esq., sworn to on June 8, 1989, II 7. On June 9, defendants moved this Court to compel arbitration pursuant to the arbitration agreement and to stay the judicial proceedings. DISCUSSION Plaintiffs argue that defendants have waived their right to arbitration, due to actions taken already in this judicial proceeding, and that defendants fraudulently induced plaintiffs to enter into the arbitration agreement. Each argument will be considered in turn. A. Waiver of Arbitration In Rush v. Oppenheimer & Co., 779 F.2d 885 (2d Cir.1985), the Second Circuit stated that due to the strong federal policy favoring arbitration, waivers of arbitration will not be “lightly inferred.” Rush, supra, 779 F.2d at 887 (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968)). In fact, the Supreme Court has noted that in all disputes over the propriety of arbitration, any doubts should be resolved in favor of arbitration. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). The rule set out by the Second Circuit in Rush is that “waiver of the right to compel arbitration due to participation in the litigation may be found only when prejudice to the other party is demonstrated.” Rush, supra, 779 F.2d at 885, citing Demsey & Associates, Inc. v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir.1972) and Carcich, supra, 389 F.2d at 696. For example, “[Ljitigation of substantial" }, { "docid": "22117359", "title": "", "text": "1968), the defendant answered on the merits but included a special defense of arbitration, participated in discovery, and moved for summary judgment. Almost eight months later, defendant moved for a stay. It was held that there was no waiver. The court did say, however, that the result might have been different had defendant asserted a counterclaim. See also Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968). Merely answering on the merits, asserting a counterclaim (or cross-claim) or participating in discovery, without more, will not necessarily constitute a waiver. We have found no cases, however, where arbitration has been allowed after a party has answered on the merits, asserted a cross-claim that was answered, participated in discovery, failed to move for a stay, and gone to trial on the merits. Jordan contends that by asserting the arbitration clause as an affirmative defense, it was not taking action inconsistent with its right to arbitrate. The law is clear, however, that “[i]t is not ‘inconsistency,’ but the presence or absence of prejudice which is determinative of the issue.” Carcich v. Rederi A/B Nordie, supra, 389 F.2d 692, 696 (2d Cir. 1968). See also Kulukundis Shipping Co., S/A v. Amtorg Trading Corp., 126 F.2d 978 (2d Cir. 1942). We can think of no clearer case of prejudice than we have here in this case. The substantial expense to all concerned that was involved in the trial of all the factual and legal issues in the case, including those raised by Jordan’s cross-claims, was caused by Jordan’s full participation in the pre-trial procedures and in the trial on the merits, despite its mere allegation of the arbitration clause in the voyage charter as a defense. We think it would be a gross miscarriage of justice now to require a retrial by arbitration of any of these issues. Accordingly, we affirm the finding that Jordan has waived its right to arbitrate. 7. Under the voyage charter, Jordan was responsible for loading, stowing and discharging the coils. Judge Bonsai found that, consistent with this duty, Jordan paid for the stevedores in Tampico, Chicago" }, { "docid": "23237554", "title": "", "text": "subsequent failure to press forward with his action and his decision to undertake prolonged settlement negotiations with PaineWebber, buttress the district court’s and our conclusion that Faragalli had not unequivocally refused to arbitrate. PaineWebber was entitled to wait until Faragalli made his intentions clear (either by filing a complaint or by clearly manifesting a refusal to arbitrate in some other manner) before it moved to compel arbitration. Thus by Faragalli having failed to reject arbitration unequivocally, PaineWebber had four years from the time its action to compel arbitration accrued in 1994 in which to petition the district court. We therefore affirm the district court on this ground. V. Faragalli next argues that PaineWebber waived its right to arbitration. Faragalli relies primarily on our decision in Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912 (3d Cir.1992). We hold this argument to be without merit. Consistent with the strong preference for arbitration in federal courts, waiver “is not to be lightly inferred,” Gavlik Const. Co. v. H.F. Campbell Co., 526 F.2d 777, 783 (3d Cir.1975) (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968)); accord Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 and waiver will normally be found only “where the demand for arbitration came long after the suit commenced and when both parties had engaged in extensive discovery.” Gavlik, 526 F.2d at 783. “[Pjrejudice is the touchstone for determining whether the right to arbitration has been waived.” Hoxworth, 980 F.2d at 925. In Hoxworth we found prejudice where, in the 11 months prior to seeking arbitration, the petitioners engaged in extensive motion practice, opposed the respondents’ motions to compel discovery and deposed all of the named plaintiffs. In Hoxworth, the petitioners sought arbitration only after obtaining useful information through discovery and only after the respondents’ own motion to compel discovery had been granted. Here, we have already concluded that PaineWebber’s cause of action to compel arbitration did not arise with the filing of the Writ of Summons in 1988. At the very earliest," } ]

[ { "docid": "11109311", "title": "", "text": "F.2d 1267 (10th Cir.1970) (Where “employees are entitled to wages which they have not received[,] ... [t]he equities lie with them”) The district court’s vacation of the restitutionary injunction was “an abuse of its small residue of discretion.” Brown Equipment, 666 F.2d at 157. Thus, the restitutionary injunction should be reinstated. Despite having found that putting on, cleaning, and taking off the unique personal protective gear was a compensable work activity, the district court nevertheless declined to hold that these actions were the first and last principal activities of the workday which would commence and toll the running of the timeclock, including “wait and walk time.” The district court found that there existed considerable flexibility and personal discretion with regard to the time and speed that these activities took place. For example, the court noted that [u]pon arrival, ... employees would either pick up or put on part or all of their personal protective equipment and their whites. Others would go to the restroom or the cafeteria and then return to their locker to dress or pick up their gear. Still others would pick up their gear, proceed to the cafeteria and then on to the work station. 820 F.Supp. at 1321. Similar differences in personal routines occurred at the end of the shift. Id. Given these circumstances, the district court concluded that the workers should be paid on the basis of a reasonable time to conduct these activities, not to include “wait and walk time,” rather than the actual time taken. 820 F.Supp. at 1328. We believe reasonable time is an appropriate measure in this case. We affirm the district court’s holding that time spent donning, removing, and cleaning the “unique” personal protective gear worn by IBP production employees who used knives was compensable “hours worked” under the FLSA. We affirm the district court’s holding that time spent donning, removing, picking up, and depositing for laundering standard safety equipment and sanitary outergarments was not “hours worked” under the FLSA. We affirm the use of “reasonable time” and the denial of “wait and walk time” related to the above issues." } ]

[ { "docid": "5576712", "title": "", "text": "at 703. IBP required the employees to pick up the knives and transport them to their work station and the employees used sharpened knives “necessarily and primarily for the benefit of the employer.” Id. The use of knives was clearly an integral and indispensable' part of the employees’ work on the production line at IBP. See Mitchell v. King Packing, 350 U.S. at 262-63, 76 S.Ct. at 339. The employees could not perform their work without sharpened knives. We see no distinction between actually sharpening knives and waiting to obtain sharpened knives-the benefit to IBP was the same. IBP required employees to use sharpened knives to perform their work and to report for work at their work station with sharpened knives. Further, IBP required employees to use the knife room for sharpen- ing. Thus, time spent picking up sharp- ened knives at the knife room was compensa- ble. An employee who is “engaged to wait” for the benefit of the employer should be compensated. Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct. 161, 163, 89 L.Ed. 124 (1944); see also Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); Renfro v. City of Emporia, 948 F.2d 1529, 1536-38 (10th Cir.1991). Wait time is time worked under FLSA if the employee is “unable to use the time effectively for his own purposes.” 29 C.F.R. § 785.15. In the present case, employees were unable to use effectively for their own purposes the time spent waiting in line at the knife room to pick up knives or at the wash stations to wash their knives and personal protective gear after their shift. Therefore, wait time at the knife room and the wash stations was compensable. Knife room walk time: Walk time is compensable (notwithstanding language in the Portal Act expressly exempting walk time) when it occurs after the start of the workday. See 29 U.S.C. § 254(a); 29 C.F.R. §§ 790.6, 790.7. The Portal Act exempts only walk time which occurs outside the workday. 29 U.S.C. § 254(a) (Only walk time which" }, { "docid": "4211742", "title": "", "text": "constitutes “hours worked” if the employer knew or should have known that the work was being performed. The plaintiffs claim that the time spent on Tyson’s premises putting on and taking off work-related protective and sanitary equipment and gear, washing and sanitizing workers’ equipment and themselves, sharpening knives, and the walking and waiting time that is required in performing these everyday duties, are “work” under the FLSA for which they should be paid. The plaintiffs must prove by a preponderance of the evidence that these activities are work. To determine whether an activity is work, you may consider (1) whether the activity is required by the employer and (2) whether the benefit of the activity inures primarily to the employer. When activities occur pre-shift or post-shift, only the time reasonably spent is compensable. You are instructed that time spent: (1) conducting pre — and post-shift donning and doffing of certain clothing and equipment that is unique to the meat-processing industry (these items include shin guards, mesh aprons, legging aprons, belly guards, steel/scabbard/knives, mesh gloves, Polar gloves, Polar sleeves, plexiglass arm guards, mesh sleeves, double mesh sleeves, and knocker vests), (2) post-shift walking from the production line associated with these unique items, (3) post-shift waiting at the wash stations and rinsing of these unique items, and (4) pre- and post-shift waiting to sanitize and sanitizing these unique items in dip tanks has already been determined to be compensable. This determination should not effect [sic] your determination of the compensability of the other activities at issue in this lawsuit. Instruction No. 17. 1. The employees contend that the district court should not have submitted the “work” issue to the jury, because it is a question of law, not fact. However, their only objection at trial to the work instruction was that the court had “ruled in [their] favor on summary judgment, putting the work issue out of the case.” That does not preserve review of the new grounds they raise on appeal. See Parkus, 135 F.3d at 1234. This court is unable to review for plain error, because the employees invited any" }, { "docid": "5576699", "title": "", "text": "the cafeteria and then on to their work station. Although not required by IBP, some employees changed out of their street clothes and into their whites. Some employees picked up their knives at their locker while others picked up their knives at the knife room. In general, employees clocked in as they went to their work stations or as they passed the cafeteria. Employees then proceeded to their work station to begin the production shift. Many knife carrying employees would ready then-knives for the first cut at this time using their steel. 23. At the end of their shifts, employees generally cleaned their knives and personal protective gear, walked to the knife room (if necessary), clocked out, proceeded to their lockers, undressed, placed their protective gear in their locker and their whites in a laundry receptacle (all plants except Boise), and left the plant. Although not required by IBP or otherwise, many employees also showered. 24. Employees were not required to clean their work stations. IBP employed workers specifically to clean the stationery tools and instruments, such as the Wizard knife, at the end of the workday. 25. All IBP plants utilized a production line process with meat proceeding along the chain or belt conveyors from work station to work station. The actual production shift was staggered — workers commenced production when the first product reached then-work station and ceased production when the last product left their station. 26. Commensurate with this production schedule, workers were paid according to “gang time,” a method of calculating wages based on the line or work unit as determined and recorded by the production supervisor. This method compensated employees for time actually spent in production at the work station — workers were paid from the time that the first meat product arrived at the first work station on the line to the time that the last meat product left the first work station. Workers were paid for a fifteen minute break, but were not paid for a half hour lunch. Overtime was paid for all documented time over forty hours per week. 27. The" }, { "docid": "22181594", "title": "", "text": "off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).” Id., at 256. The principal question presented by these consolidated cases — both of which involve required protective gear that the courts below found integral and indispensable to the employees’ work — is whether postdonning and predoffing walking time is specifically excluded by § 4(a)(1). We conclude that it is not. Petitioner m No. 03-1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass arm-guards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear. Production workers’ pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, IBP has also paid for four minutes of clothes-changing time. In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts. After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the" }, { "docid": "4211741", "title": "", "text": "is also possible that the jury decided the activities were not compensable because they were not “work” under the FLSA or because they were not “integral and indispensable” under the Portal-to-Portal Act. Because of the verdict form, this court can only speculate as to the effect of the “reasonable time” instructions, and “[speculation ... is not a sufficient basis for finding a plaintiffs substantial rights were affected.” Id. at 981. B. The employees argue that the district court committed two errors in instructing whether donning and doffing the non-unique items was work under the FLSA. The district court instructed the jury: The first issue you will have to decide is whether or not the activities at issue are “work.” When deciding whether an activity is work, it makes no difference how easy or difficult the activity is, how long it takes, or whether it requires any exertion at all. The phrase “hours worked” includes all time spent by an employee that was primarily for the benefit of the employer or the employer’s business. Such time constitutes “hours worked” if the employer knew or should have known that the work was being performed. The plaintiffs claim that the time spent on Tyson’s premises putting on and taking off work-related protective and sanitary equipment and gear, washing and sanitizing workers’ equipment and themselves, sharpening knives, and the walking and waiting time that is required in performing these everyday duties, are “work” under the FLSA for which they should be paid. The plaintiffs must prove by a preponderance of the evidence that these activities are work. To determine whether an activity is work, you may consider (1) whether the activity is required by the employer and (2) whether the benefit of the activity inures primarily to the employer. When activities occur pre-shift or post-shift, only the time reasonably spent is compensable. You are instructed that time spent: (1) conducting pre — and post-shift donning and doffing of certain clothing and equipment that is unique to the meat-processing industry (these items include shin guards, mesh aprons, legging aprons, belly guards, steel/scabbard/knives, mesh gloves, Polar" }, { "docid": "5576734", "title": "", "text": "clearly required employees to report for work with sharpened knives. Thus, the only alternative would have been for employees to sharpen the knives themselves and that activity would clearly have been compensable under Mitchell v. King Packing, 350 U.S. at 262-63, 76 S.Ct. at 339. . We will discuss the compensability of time spent related to personal protective gear below. . Although some employees stored their knives at their lockers instead of at the knife room, all employees were required to obtain sharpened knives from the knife room. Thus, regardless of when they visited the knife room or where their knives were stored, the knife room was the one constant for all knife-carrying employees. . OSHA imposes requirements on both the employer and the employees to comply with the safety regulations. 29 U.S.C. § 654. However, the ultimate responsibility for compliance rests with the employer and only the employer is subject to penalties for violations. Atlantic & Gulf Stevedores, Inc. v. Occupational Safety & Health Review Comm'n, 534 F.2d 541, 545, 553-54 (3d Cir.1976); 29 U.S.C. §§ 658(a), 659(a). . However, the wearing of standard protective gear which was not uniquely required by the dangers of the various production jobs being performed was not compensable. Such standard safety equipment included hard hats, ear plugs, safety footwear, and safety eyewear. Although these items are required by OSHA, the time spent donning them was not compensable. Such items are uniformly required throughout many industries. These protective items were not so uniquely and closely related to the dangers inherent in meat production to make the wearing them an integral and indispensable part of the meat production workers’ jobs. . The de minimus question was not addressed in this phase of the litigation. . The Supreme Court affirmed without addressing the question of backpay. See Steiner, 350 U.S. at 249, 76 S.Ct. at 331. . Although there are no formal pleadings before the court at this time on the issue of certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the court would have no difficulty in granting such a request." }, { "docid": "5576695", "title": "", "text": "or boning operations be maintained in a clean and sanitary manner. 15. Optional Equipment: Many employees not required to wear a rubber apron chose to do so for comfort because it kept them dry and made cleanup easier. Employees also wore cotton or rubber gloves, cotton aprons, and additional layers of clothing under their whites for comfort or convenience. 16. Employees were required to remove their clean outergarments and protective gear before going to the restroom or to the cafeteria for their lunch break. 17. Knives: IBP furnished knives and other meat cutting utensils to employees at no cost. These cutting utensils were primarily sharpened and serviced by knife room personnel who were paid for their work in the knife room. 18. The procedures by which employees obtained sharpened knives for use on the production floor varied by plant location. The knife room opened at least an hour before the first shift began and closed an hour after the last shift ended. Generally, employees visited the knife room either before or after their production shift. However, some employees also went to the knife room during their paid breaks, unpaid lunch breaks, or paid work time. At most plants, employees exchanged their knives for sharpened knives at the knife room only when necessary. At these plants, workers stored the knives in their lockers overnight. At the Finney County plant, employees were required to check their knives into the knife room each night and pick them up each morning. Similarly, at the West Point plant, at least some employees were required to deposit their knives in a rack at the knife room each night and pick them up each morning. At some plants, employees waited at the knife room while their knives were sharpened and returned to them. At others, employees exchanged dull knives for sharpened knives. Either way, workers frequently had to wait in line at the knife room. 19. IBP required production employees to report for work at the start of each shift with clean knives and protective equipment and to maintain them in a sanitary manner throughout the shift." }, { "docid": "5576696", "title": "", "text": "However, some employees also went to the knife room during their paid breaks, unpaid lunch breaks, or paid work time. At most plants, employees exchanged their knives for sharpened knives at the knife room only when necessary. At these plants, workers stored the knives in their lockers overnight. At the Finney County plant, employees were required to check their knives into the knife room each night and pick them up each morning. Similarly, at the West Point plant, at least some employees were required to deposit their knives in a rack at the knife room each night and pick them up each morning. At some plants, employees waited at the knife room while their knives were sharpened and returned to them. At others, employees exchanged dull knives for sharpened knives. Either way, workers frequently had to wait in line at the knife room. 19. IBP required production employees to report for work at the start of each shift with clean knives and protective equipment and to maintain them in a sanitary manner throughout the shift. To comply with these requirements, most employees cleaned their knives and personal protective equipment at wash facilities using hot water from high pressure hoses located within the production area. This occurred as often as necessary during the shift and at the end of the shift. Employees were paid for all cleaning that occurred during the production shift, but were not paid for cleaning that occurred at the end of the production shift. Some employees had to wait for their turn at the wash station at the end of their shift. 20. Workers arrived at the plant at various times. The defendant required employees to be at their work station ready to commence work when their production shift started — i.e. when the first piece of product arrived. Although defendant had no express requirement that employees report for work prior to this time, as a practical matter, employees had to arrive earlier in order to be at their work station, dressed in whites and protective gear, knife in hand, and ready to work by the start" }, { "docid": "20670072", "title": "", "text": "(10th Cir.1998), should persuade the Court to find that the disputed activities are compensable. However, Monfort addressed a comparable, but distinguishable fact pattern. In Monfort, employees at a meat packing plant in Greeley, Colorado were paid on “line time”, and were not compensated for either the time spent donning and doffing safety and sanitary clothing and equipment, or the time spent cleaning that equipment (including cutting knives). During the course of litigation, the meat packing company admitted that the time spent donning sanitary and protective gear was compensable work . After trial, Chief Judge Matsch determined that the activities constituted ten minutes per day, and held that this amount of time was not de minimis as a matter of law. The Tenth Circuit, although noting that this was a close case, upheld the district court’s conclusion that the work was not de minimis as a matter of law. . At first glance, Monfort supports Plaintiffs’ arguments in this lawsuit. However, Monfort is distinguishable from the case at bar for several reasons. First, and foremost, the clothing items worn by the meat packing employees are heavier, and more cumbersome than the clothing items worn by the poultry workers in this case. Both meat packing workers and poultry workers wear earplugs, hairnets, cotton frocks, rubber aprons, rubber gloves, and cotton gloves. However, meat packaging employees wear scabbards, arm guards, arm mesh, mesh apron, back mesh, a “wizard glove”, and gaiters. None of the poultry workers at Pilgrim’s Pride wear these additional items. Second, in contrast with the meat packing employees, the relatively small number of Defendant’s poultry line employees who use knives do not clean their knives before their shift begins, after their shift begins, or during breaks. Furthermore, the poultry employees do not walk to a knife room to pick up new knives outside of line time. Because meat packing employees wear heavy protective gear that can become extremely soiled, it is easier to argue that these employees exert burdensome physical and mental energy when they put on, take off, and clean their equipment. Presumably, meat packing employees expend a significant" }, { "docid": "5576711", "title": "", "text": "processing). Secondly, the mere fact that the workers’ clothing became soiled does not necessarily make clothes changing com-pensable. See Mitchell v. Southeastern Carbon Paper Co., 228 F.2d 934, 935-39 (5th Cir.1955) (carbon paper manufacturing). Rather, this fact shows that wearing the outer garment benefitted the employee as well as IBP. Finally, an activity is not com-pensable simply because it is required by the employer. See Merrill v. Exxon Corp., 387 F.Supp. 458, 460, 464-66 (S.D.Tex.1974). In the present case, there were no extreme safety concerns (with regard to outer garments) similar to those that led the Supreme Court to declare the showering and clothes changing time in Steiner compensable. We, therefore, conclude that clothes changing time was not compensable in this case. Knife room ivait time: By analogy to Mitchell v. King Packing, the time spent in the present case waiting at the knife room for sharpened knives was compensable. The time spent was “hours worked” because it involved “mental or physical exertion (whether burdensome or not).” Tennessee Coal, 321 U.S. at 598, 64 S.Ct. at 703. IBP required the employees to pick up the knives and transport them to their work station and the employees used sharpened knives “necessarily and primarily for the benefit of the employer.” Id. The use of knives was clearly an integral and indispensable' part of the employees’ work on the production line at IBP. See Mitchell v. King Packing, 350 U.S. at 262-63, 76 S.Ct. at 339. The employees could not perform their work without sharpened knives. We see no distinction between actually sharpening knives and waiting to obtain sharpened knives-the benefit to IBP was the same. IBP required employees to use sharpened knives to perform their work and to report for work at their work station with sharpened knives. Further, IBP required employees to use the knife room for sharpen- ing. Thus, time spent picking up sharp- ened knives at the knife room was compensa- ble. An employee who is “engaged to wait” for the benefit of the employer should be compensated. Skidmore v. Swift & Co., 323 U.S. 134, 137, 65 S.Ct." }, { "docid": "5576701", "title": "", "text": "defendant neither recorded nor paid workers for any time before or after actual production at their work station. Outside the production shift, employees were not paid for time spent: 1) putting on or taking off personal protective equipment or clean outer garments; 2) cleaning knives or personal protective equipment or waiting in line to do so; 3) exchanging knives at the knife room or waiting in line to do so; or 4) walking to and from the laundry room, locker room, knife room, time clock, wash areas, or the production areas. 28. During the relevant period, the standard practice in the meat industry (absent a collective bargaining agreement to the contrary) was that employees were not compensated for preliminary or postliminary activities such as walking, changing clothes, donning protective gear, having knives sharpened, and cleaning equipment or knives. 29. During a compliance review of the Storm Lake plant in 1988, Thomas Lammers, USDOL compliance officer, noted in his report (Defendant’s Trial Exhibit 433) that “[tjhere is some feeling that the walk time should be counted as hours worked because the employees have to change clothes by law_” However, Lammers was told by his supervisor not to count walk time from the locker room to the work station and back as compensable time. 30. An unnamed compliance officer with the USDOL told Mr. Arden Walker, then VP for labor relations at IBP, that the knife room arrangement at the Denison plant was in compliance with USDOL requirements under the FLSA. In reliance upon this opinion, IBP set up knife rooms in the rest of their plants. 31. The defendant was a self-insured employer for workers’ compensation purposes in the - following states: Idaho; Illinois; Iowa; Kansas; Minnesota; and Nebraska. Defendant was therefore required to pay reasonable medical expenses and compensation benefits resulting from a work-related injury or illness. 32. In preparation for this case, the Secretary of Labor identified 23,580 hourly production workers who were employed at the plants in question during the relevant period and mailed a questionnaire to each of them. 5,743 questionnaires were filled out and returned. Of" }, { "docid": "5576726", "title": "", "text": "331, 335, 100 L.Ed. 267. We find this reasoning compelling in the instant case. We believe that there was room for an honest and justifiable difference of opinion regarding the interpretation of the FLSA, the Portal Act and their interplay with the mandates of OSHA. , However, the Portal Act specifically includes a bar to an action for back pay in section 259 for which IBP does not qualify. We are unable, in light of this specific statutory framework, to rely solely on federal common law principles to deny back pay in this case. “Resort to federal common law is only necessary where Congress has not plainly spoken to the matter under consideration.” Federal Deposit Ins. Corp. v. Bank of Boulder, 911 F.2d 1466, 1474 (10th Cir. 1990) (citing Milwaukee v. Illinois, 451 U.S. 304, 313-14, 101 S.Ct. 1784, 1790-91, 68 L.Ed.2d 114 (1981)); see also Joiner v. City of Macon, 627 F.Supp. 1532, 1535-36 (M.D.Ga.1986) (“Federal common law is inapplicable where Congress has determined by statute — as here the FLSA and the Portal to Portal Act ... — the underlying policy and its enforcement.”). Thus, IBP will be enjoined from withholding back pay due employees for hours worked during the relevant period. Reasonable v. Actual Time Employees are entitled compensation for the reasonable time (rather than the actual time) required to put on personal protective gear and obtain sharpened knives. As the court in Amos v. United States held, employees should only be compensated for the “amount of time reasonably required.” 13 Cl.Ct. 442, 450, 107 Lab.Cas. ¶ 34,980, at 45,261 (Cl.Ct.1987). The Atoos court reasoned, To rule otherwise would run the risk of rewarding plaintiffs for lack of diligence in getting and returning the equipment and in walking to and from this work station and conversely, penalizing those of the plaintiffs who may have taken less than a reasonable amount of time in doing these activities. Id. Permanent Injunction A permanent injunction is not “mandatory under the law.” Mistletoe, 434 F.2d at 1271. Rather, we may exercise our discretion to issue an order permanently enjoining IBP from" }, { "docid": "5576700", "title": "", "text": "instruments, such as the Wizard knife, at the end of the workday. 25. All IBP plants utilized a production line process with meat proceeding along the chain or belt conveyors from work station to work station. The actual production shift was staggered — workers commenced production when the first product reached then-work station and ceased production when the last product left their station. 26. Commensurate with this production schedule, workers were paid according to “gang time,” a method of calculating wages based on the line or work unit as determined and recorded by the production supervisor. This method compensated employees for time actually spent in production at the work station — workers were paid from the time that the first meat product arrived at the first work station on the line to the time that the last meat product left the first work station. Workers were paid for a fifteen minute break, but were not paid for a half hour lunch. Overtime was paid for all documented time over forty hours per week. 27. The defendant neither recorded nor paid workers for any time before or after actual production at their work station. Outside the production shift, employees were not paid for time spent: 1) putting on or taking off personal protective equipment or clean outer garments; 2) cleaning knives or personal protective equipment or waiting in line to do so; 3) exchanging knives at the knife room or waiting in line to do so; or 4) walking to and from the laundry room, locker room, knife room, time clock, wash areas, or the production areas. 28. During the relevant period, the standard practice in the meat industry (absent a collective bargaining agreement to the contrary) was that employees were not compensated for preliminary or postliminary activities such as walking, changing clothes, donning protective gear, having knives sharpened, and cleaning equipment or knives. 29. During a compliance review of the Storm Lake plant in 1988, Thomas Lammers, USDOL compliance officer, noted in his report (Defendant’s Trial Exhibit 433) that “[tjhere is some feeling that the walk time should be counted" }, { "docid": "5576714", "title": "", "text": "occurs “either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” is exempt.) “Workday’ means the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Id. at § 790.6(b). Thus, the workday began with the commencement of the first principal activity. Id. As we have already determined, knives were an integral and indispensable part of the production work of knife carrying employees. Thus, the first principal activity for these employees was to pick up sharpened knives with which to perform their job on the production line. Therefore, the knife carrying employees’ workday began and ended at the knife room because that was where the first and last principal activity occurred. We thus conclude that the time spent walking from the knife room to the work station and back to the knife room was com-pensable because it occurred during the workday. For clarity, we stress that the walk time was not compensable because the employees were carrying hand tools. See 29 C.F.R. § 790.7(d) (carrying ordinary hand tools does not transform preliminary activity into a principle activity). Rather, the walk time is compensable because the workday was already underway. See 29 U.S.C. § 254(a), 29 C.F.R. §§ 790.6, 790.7; see also D A & S Oil Well Serv., Inc. v. Mitchell, 262 F.2d 552, 555 (10th Cir.1958) (time spent performing services essential to the performance of the principal activity was compen-sable); Dole v. Enduro Plumbing, Inc., 117 Lab.Cas. (CCH) ¶ 35,418, 1990 WL 252270 (C.D.Cal.1990) (all work subsequent to the triggering of the workday was compensable). Laundry room walk time: However, the time spent by employees walking to and from the laundry room at the Joslin, Finney County, Emporia, and De-nison plants to pick up and deliver whites (prior to the time when IBP began delivering whites in bags to the employees’ lockers) was not compensable. As we have already discussed, the wearing of sanitary outer garments was not an integral" }, { "docid": "5576733", "title": "", "text": "their knives while at the work station using a device called a \"steel,” but more serious damage to the edge of the knife required sharpening in the knife room. . However, prior to installation of identification card readers, IBP used a time clock solely for the purpose of recording attendance. During this time, IBP required employees to clock in no more than 7 minutes before the start of their production shift and to clock out no more than 7 minutes after the end of their production shift. . The employees did not handle any toxic chemicals or other dangerous substances making showering before leaving the premises necessary for safety reasons, . Although both McComb and Southeastern Carbon were decided before Steiner, they were not reversed by Steiner. Unlike Steiner, clothes changing was not necessitated by safety considerations in either case. . Thereis some dispute over whether the em- ployees were required to use the knife room. Even if IBP did not require employees to use the knife room to obtain sharpened knives, IBP knives, IBP clearly required employees to report for work with sharpened knives. Thus, the only alternative would have been for employees to sharpen the knives themselves and that activity would clearly have been compensable under Mitchell v. King Packing, 350 U.S. at 262-63, 76 S.Ct. at 339. . We will discuss the compensability of time spent related to personal protective gear below. . Although some employees stored their knives at their lockers instead of at the knife room, all employees were required to obtain sharpened knives from the knife room. Thus, regardless of when they visited the knife room or where their knives were stored, the knife room was the one constant for all knife-carrying employees. . OSHA imposes requirements on both the employer and the employees to comply with the safety regulations. 29 U.S.C. § 654. However, the ultimate responsibility for compliance rests with the employer and only the employer is subject to penalties for violations. Atlantic & Gulf Stevedores, Inc. v. Occupational Safety & Health Review Comm'n, 534 F.2d 541, 545, 553-54 (3d Cir.1976); 29" }, { "docid": "5576727", "title": "", "text": "to Portal Act ... — the underlying policy and its enforcement.”). Thus, IBP will be enjoined from withholding back pay due employees for hours worked during the relevant period. Reasonable v. Actual Time Employees are entitled compensation for the reasonable time (rather than the actual time) required to put on personal protective gear and obtain sharpened knives. As the court in Amos v. United States held, employees should only be compensated for the “amount of time reasonably required.” 13 Cl.Ct. 442, 450, 107 Lab.Cas. ¶ 34,980, at 45,261 (Cl.Ct.1987). The Atoos court reasoned, To rule otherwise would run the risk of rewarding plaintiffs for lack of diligence in getting and returning the equipment and in walking to and from this work station and conversely, penalizing those of the plaintiffs who may have taken less than a reasonable amount of time in doing these activities. Id. Permanent Injunction A permanent injunction is not “mandatory under the law.” Mistletoe, 434 F.2d at 1271. Rather, we may exercise our discretion to issue an order permanently enjoining IBP from future violations of the FLSA consistent with this opinion if there is a danger of future violations. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953); Buckley v. Wirtz, 326 F.2d 838, 839-40 (10th Cir.1964). An injunction should not be issued as punishment for past violations, but rather, as insurance against future ones. See Mitchell v. Hertzke, 234 F.2d 183, 198-87 (10th Cir. 1956). The Secretary bears the burden of proving that an injunction is warranted. Id. at 187. IBP has not entered into an agreement to comply in the future. See Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959) (injunction unnecessary where employer agrees not to violate in the future). IBP is also not currently in compliance. We, therefore, conclude that an order enjoining IBP from future violations of sections 15(a)(2) and 15(a)(5) of the FLSA, as amended 29 U.S.C. § 201 et seq. is appropriate. IT IS THEREFORE ORDERED that defendant IBP is hereby enjoined" }, { "docid": "4500495", "title": "", "text": "decided, the Supreme Court held in Mitchell v. King Packing Co., 350 U.S. 260, 263, 76 S.Ct. 337, 100 L.Ed. 282 (1956), that because sharpening knives was integral and indispensable to the task of butchering animals, the employees of a packing plant must be paid for the time spent before and after their principal butchering duties during which they sharpened the knives they used. Id. at 262, 76 S.Ct. 337. In the more recent case of IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), the Supreme Court observed that, although the Portal-to-Portal Act expressly excludes commuting and preliminary and postliminary activities from coverage under the FLSA, it does not purport to change the previously articulated definition of “work” and therefore does not effect how work hours were computed “within” the workday. Id. at 28,126 S.Ct. 514. (relying in part on Department of Labor regulation 29 C.F.R. § 790.6(a) (“the Portal Act does not affect the computation of hours worked within the “workday’ proper, roughly described as the period ‘from whistle to whistle,’ and its provisions have nothing to do with the com-pensability under the Fair Labor Standards Act of any activities engaged in by an employee during that period”)). The Supreme Court also observed that the Department of Labor had adopted its “continuous workday” rule which held that the workday was defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Id. at 29, 126 S.Ct. 514 (quoting § 790.6(b)). The first issue in IBP was whether the time that the plaintiff employees spent walking between the employee changing area and the production line was compensable under the FLSA. Id. at 24, 126 S.Ct. 514. The plaintiffs argued that they were due compensation for the time they spent putting on protective gear after arriving at defendant IBP’s factory and the time they spent walking from the room in which they donned their protective gear to their positions on the factory floor. IBP had been compensating them for the hours they spent cutting and bagging" }, { "docid": "5576698", "title": "", "text": "of the shift. 21. Employees would not have been able to put their protective gear on at home (even if they had been 'allowed to do so) and then drive to work. The protective gear involved was bulky and cumbersome. Although employees could have been allowed to take the gear home, they would still have had to put it on after they arrived at the plant. 22. Upon arriving at the plant, employees engaged in a variety of activities and the sequence of these activities varied by employee. In general, IBP did not control or prescribe any required sequence for these pre-shift activities. Upon arrival, employees would generally first go to their lockers where they would typically leave personal items such as their coat. Some employees would either pick up or put on part or all of their personal protective equipment and their whites. Others would go to the restroom or the cafeteria and then return to their locker to dress or pick up their gear. Still others would pick up their gear, proceed to the cafeteria and then on to their work station. Although not required by IBP, some employees changed out of their street clothes and into their whites. Some employees picked up their knives at their locker while others picked up their knives at the knife room. In general, employees clocked in as they went to their work stations or as they passed the cafeteria. Employees then proceeded to their work station to begin the production shift. Many knife carrying employees would ready then-knives for the first cut at this time using their steel. 23. At the end of their shifts, employees generally cleaned their knives and personal protective gear, walked to the knife room (if necessary), clocked out, proceeded to their lockers, undressed, placed their protective gear in their locker and their whites in a laundry receptacle (all plants except Boise), and left the plant. Although not required by IBP or otherwise, many employees also showered. 24. Employees were not required to clean their work stations. IBP employed workers specifically to clean the stationery tools and" }, { "docid": "5576713", "title": "", "text": "161, 163, 89 L.Ed. 124 (1944); see also Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); Renfro v. City of Emporia, 948 F.2d 1529, 1536-38 (10th Cir.1991). Wait time is time worked under FLSA if the employee is “unable to use the time effectively for his own purposes.” 29 C.F.R. § 785.15. In the present case, employees were unable to use effectively for their own purposes the time spent waiting in line at the knife room to pick up knives or at the wash stations to wash their knives and personal protective gear after their shift. Therefore, wait time at the knife room and the wash stations was compensable. Knife room walk time: Walk time is compensable (notwithstanding language in the Portal Act expressly exempting walk time) when it occurs after the start of the workday. See 29 U.S.C. § 254(a); 29 C.F.R. §§ 790.6, 790.7. The Portal Act exempts only walk time which occurs outside the workday. 29 U.S.C. § 254(a) (Only walk time which occurs “either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities” is exempt.) “Workday’ means the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Id. at § 790.6(b). Thus, the workday began with the commencement of the first principal activity. Id. As we have already determined, knives were an integral and indispensable part of the production work of knife carrying employees. Thus, the first principal activity for these employees was to pick up sharpened knives with which to perform their job on the production line. Therefore, the knife carrying employees’ workday began and ended at the knife room because that was where the first and last principal activity occurred. We thus conclude that the time spent walking from the knife room to the work station and back to the knife room was com-pensable because it occurred during the workday. For clarity, we stress that" }, { "docid": "19292522", "title": "", "text": "L.Ed.2d 288 (2005) (holding employees of a meat processing plant could bring an FLSA collective action to recover for the time it took to change into required specialized protective clothing and safety gear, including the time required for walking and waiting); Lopez, 2007 WL 1291101, at *3 (Bataillon, J., presiding). See also, Reich v. Monfort, 144 F.3d 1329 (10th Cir.1998) (the preliminary time spent donning safety and sanitary clothing before and after shifts was compensable, not de minimis); Perez v. Mountaire Farms, Inc., 610 F.Supp.2d 499 (D.Md.2009)(holding donning/doffing of personal protective equipment required for performing jobs in a poultry processing plant were integral and indispensable to employees’ principal activities and thus compensable under FLSA); Jordan v. IBP, Inc., 542 F.Supp.2d 790 (M.D.Tenn.2008) (the donning and doffing of frocks was compensable where it included the collecting, sanitizing, and stowing of gear, as well as walking and waiting to complete these tasks). However, some courts have held the donning and doffing of general protective gear, such as a helmet, safety glasses, earplugs, and steel-toed boots, may be an “indispensable” part of the job, without being “integral” or compensable. See, Gorman v. Consolidated Edison Corp., 488 F.3d 586, 594 (2d Cir.2007) (collecting cases and denying FLSA recovery for time spent donning a helmet, safety glasses, and steel-toed boots). See also, Reich v. IBP, Inc., 38 F.3d 1123 (10th Cir.l994)(holding the time spent by knife-wielding workers at donning, doffing, cleaning and storing safety equipment was compensable work time, while the analogous time spent by nonknife-wielding employees who wore standard safety equipment such as safety glasses, a pair of ear plugs, and a hard hat was not compensable “work” under the FLSA). Many of these cases consider the time spent donning and doffing general safety equipment, such as a helmet and safety glasses, de minimis and non-compensable under the FLSA. Moreover, to the extent an employee chooses, rather than is required, to wear clothing or footwear which may be considered safety equipment (e.g. steel-toed boots), or chooses to don and doff these items at work rather than home, the defendant claims the time spent is" } ]

[ { "docid": "413387", "title": "", "text": "his right to speak with the consul of the alien’s country, is a ground for attacking the validity of the deportation of the violation prejudiced the defendant. United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979); see United States v. Vega-Mejia, 611 F.2d 751 (9th Cir. 1979). Although not wholly clear from the record, it appears that Bejar wished to pur sue this line of questioning in order to show that the prior deportation was unlawful. Testimony by the government witness about whether the Service had complied with § 242.2(e) was directly relevant to the issue of the legality of the prior deportation. Compare United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir. 1980). (Evidence concerning non-compliance with agency regulations could not be offered to challenge the fact of the prior deportation when the trial court had previously considered the lack of compliance and ruled it non-prejudicial.) By restricting Bejar’s cross-examination in this area, the district court prevented Bejar from making an effective defense of a § 1326 charge. II. A second ground exists for reversing Bejar’s conviction. A conviction for a violation of § 1326 requires proof, as an essential element of the crime, that the defendant is an alien. 8 U.S.C. § 1326. As a means of proving Bejar’s alienage, the Government introduced a certified copy of a judgment and commitment order which showed that Bejar had once pled guilty to a violation of 8 U.S.C. § 1325 (misdemeanor illegal entry). To justify its introduction, the Government argued under a theory of collateral estoppel that the prior judgment was relevant in proving Bejar’s alienage, that is, alienage is necessarily established by a conviction for a violation of § 1325. Bejar objected to the admission of the prior judgment, arguing that it was evidence of bad conduct which is not admissible under any theory of evidence. We agree that the district court committed reversible error in admitting the copy of the prior judgment. A. Relevance. Under the collateral estoppel doctrine, where a question of fact essential to the judgment is actually litigated and determined by a valid judgment," } ]

[ { "docid": "16767033", "title": "", "text": "tried to view the films by holding the film stock up to the light. Merino-Balderrama then was rearrested and charged with possession of child pornography, a felony under 18 U.S.C. § 2252(a)(4)(B). During the jury trial, the government introduced into evidence fifteen of the items found in the trunk of the defendant’s car during his' November 11, 1996 arrest: The seven 8 millimeter films, the» seven still photographs attached to the covers of the film boxes, and the magazine that contained child pornography. The defendant did not object to the government’s introduction of these items into evidence. He objected, however, when the government proposed to show the films to the jury. The defendant argued, as he does here on appeal, that screening the films for the jury was unfairly prejudicial under Rule 403 of the Federal Rules of Evidence. In light of his offer to stipulate to the two elements of § 2252 to which the films were most relevant, and because the record contained no evidencé to show that he knew the films depicted child pornography, the defendant insisted that the films’ potential for prejudice outweighed their probative value. The district court overruled Merino-Bal-derrama’s objection and commented that the government was not required to accept his offer to stipulate. Accordingly, the government refused to stipulate to any elements of the crime and was permitted -to show the jury several minutes from each of six of the seven films. Before allowing the government to screen the first film, the district court issued a brief cautionary instruction. On May 14, 1997, the jury convicted the defendant, who currently is serving a fifteen-month sentence. The defendant timely appeals. Jurisdiction and Standard of Review The district court had jurisdiction of the matter under 28 U.S.C. § 1331. We have jurisdiction of this appeal under 28 U.S.C. § 1291. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Crosby, 75 F.3d 1343, 1346 (9th Cir.1996). Should a district court abuse its discretion by admitting unfairly prejudicial evidence, a conviction must be reversed if the error is not harmless and" }, { "docid": "23357191", "title": "", "text": "be given “wide latitude” when it balances the prejudicial effect of proffered evidence against its probative value. United States v. Spencer, 1 F.3d 742, 744 (9th Cir.1993), quoting United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988). Further, we are to “evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.” Old Chief v. United States, 519 U.S. 172, 183 n. 6, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Rule 403 of the Federal Rules of Evidence states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of ... needless presentation of cumulative evidence.” To determine whether the prejudicial nature of a specific piece of evidence outweighs its probative value, a district court should consider whether the government could have made the same showing through less prejudicial means. United States v. Sine, 493 F.3d 1021, 1035 (9th Cir.2007). “The Supreme Court has held that ‘what counts as the Rule 403 “probative value” of an item of evidence ... may be calculated by comparing evidentiary alternatives.’ ” Id., quoting Old Chief, 519 U.S. at 184, 117 S.Ct. 644. In this case, Higuera-Llamos was prosecuted under 8 U.S.C. § 1326(a). That section provides that an alien who unlawfully enters or attempts to enter the United States after he “has been denied admission, excluded, deported or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding” is subject to a fine or imprisonment. Alienage is a specific element of this offense, and the government must prove alienage beyond a reasonable doubt. United States v. Smith-Baltiher, 424 F.3d 913, 921 (9th Cir.2005). We have held that admission of a prior judgment to show alienage, as required to secure a conviction under 8 U.S.C. § 1326(a), may constitute reversible error where no limiting instruction is given and where ample alternatives have been offered to prove alienage. United States v. Bejar-Matrecios, 618 F.2d 81, 84 (9th" }, { "docid": "17351799", "title": "", "text": "otherwise and excluded the evidence, we conclude that the district court did not abuse its discretion in admitting Ramos-Atondo’s prior alien smuggling conviction under Rule 404(b) of the Federal Rules of Evidence. As explained above, there were several logical theories that made the evidence relevant and supported the conclusion that the probative value of the evidence was not outweighed by prejudice from it. Ramos-Atondo possibly suffered some practical prejudice as a result of admitting evidence of his prior smuggling crime, in the sense that any evidence that tends to show guilt admitted against a defendant charged with crime may cause prejudice because the relevant evidence of guilt increases the likelihood of a conviction. But because of the probative value of the evidence, it was not unfair prejudice that would warrant exclusion under Rule 403 of the Federal Rules of Evidence. See Flores-Blanco, 623 F.3d at 920 (“The evidence was probative of [defendant’s] knowledge and intent and not of the type that would provoke an unfairly prejudicial emotional response [from the jury].”). Further, any such practical prejudice was minimized by the district court’s careful limiting instruction to the jury. Id. We conclude that the district court did not abuse its discretion by admitting RamosAtondo’s prior alien smuggling conviction under Rule 404(b) and not excluding it under Rule 403 of the Federal Rules of Evidence. V The district court did not abuse its discretion by instructing the jury on a theory of deliberate ignorance in the context of a conspiracy to import marijuana, did not err in denying Ramos’s Rule 29 motion, and did not abuse its discretion by admitting evidence of Ramos-Atondo’s prior alien smuggling conviction under Rule 404(b) of the Federal Rules of Evidence. AFFIRMED. . Ramos-Atondo was also convicted of being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326(a). He does not appeal that conviction or sentence." }, { "docid": "23357193", "title": "", "text": "Cir.1980). In Bejar-Matrecios, the district court admitted a certified judgment of the defendant’s guilty plea to 8 U.S.C. § 1325, a misdemeanor illegal entry, for the purpose of proving alienage. Id. at 83. No limiting instruction was given. Id. at 84. We held that there was a substantial possibility that the jury may have mistaken the admission of the guilty plea as evidence of the defendant’s criminal disposition. Id. Further, the government had introduced seven documents from the defendant’s earlier deportation that “would strongly tend to prove that he was an alien.” Id. The court reasoned that although “[ejvidence of a prior conviction that conclusively establishes a material element of a crime would normally be highly probative,” the manner in which the judgment was introduced “substantially diminished its probative value.” Id. The instant case is clearly distinguishable. First, we examine the probative value of the judgment as tending to prove Higuera-Llamos’ alienage. A previous conviction under 8 U.S.C. § 1326(a) establishes that a defendant was an alien at the time of that conviction, and is therefore relevant and highly probative of alien-age for the current 8 U.S.C. § 1326 charge. See Bejar-Matrecios, 618 F.2d at 84. But Higuera-Llamos’ counsel suggested that testimony from border patrol agents who were present at the time Higuera-Llamos was apprehended provided an adequate evidentiary alternative to prove alienage. This testimony recounted Higuera-Llamos’ admission that he was a Mexican citizen in the United States illegally. However, in this circuit, a defendant’s admission alone is insufficient to prove alien-age; it requires independent corroborating evidence to serve as the basis for a conviction. United States v. Hernandez, 105 F.3d 1330, 1332(9th Cir.1997). Thus unlike Bejar-Matrecios, the alternative evidence suggested was insufficient as a matter of law to prove alienage conclusively, so the probative value of the judgment admitted was not substantially diminished. Next, we examine the prejudicial nature of the judgment. In this case, the manner in which the judgment was introduced differed substantially from that in Bejar-Matrecios. First, the judgment and commitment was redacted so as to eliminate all information regarding sentencing and any other miscellaneous, irrelevant" }, { "docid": "22468302", "title": "", "text": "address Martinez’s challenge to his conviction. Martinez claims that the district court erred by permitting the government to introduce evidence that he had been deported both in 1994 and 1999. In this case, we review the district court’s evidentiary rulings for abuse of discretion. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004) (holding that we review Rule 404(b) determinations for abuse of discretion), amended by 449 F.3d 1059 (9th Cir.2006); United States v. Verduzco, 373 F.3d 1022, 1029 (9th Cir.2004) (holding that we review Rule 403 determinations for abuse of discretion). Martinez asserts that the admission of evidence of his two prior deportations violated Rule 404(b) of the Federal Rules of Evidence. However, Rule 404(b) does not exclude evidence forming an essential element of the charged offense. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir.2004). Because proving that the defendant has been previously removed is an essential element of the government’s case under § 1326, the district court did not abuse its discretion under Rule 404(b) in admitting evidence of prior deportations. Martinez also claims, under Rule 403, that the probative value of evidence that he had been twice deported was outweighed by its prejudicial effect. However, because the evidence of each deportation was dissimilar, the government was entitled to introduce evidence of both deportations to hedge the risk that the jury may reject the offered proof of one deportation, but not the other. See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir.2005). Also, the government did not have any alternative means of proving prior deportation. See Old Chief v. United States, 519 U.S. 172, 182, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Because the district court did not abuse its discretion by admitting evidence that Martinez had been previously removed on two separate occasions, we affirm Martinez’s conviction and move on to consider his two challenges to his sentence. After the above paragraphs, insert a roman numeral “III” and continue with the text that currently appears below roman numeral “II.” On slip opinion page 18684, line 4 of the second full" }, { "docid": "23357194", "title": "", "text": "therefore relevant and highly probative of alien-age for the current 8 U.S.C. § 1326 charge. See Bejar-Matrecios, 618 F.2d at 84. But Higuera-Llamos’ counsel suggested that testimony from border patrol agents who were present at the time Higuera-Llamos was apprehended provided an adequate evidentiary alternative to prove alienage. This testimony recounted Higuera-Llamos’ admission that he was a Mexican citizen in the United States illegally. However, in this circuit, a defendant’s admission alone is insufficient to prove alien-age; it requires independent corroborating evidence to serve as the basis for a conviction. United States v. Hernandez, 105 F.3d 1330, 1332(9th Cir.1997). Thus unlike Bejar-Matrecios, the alternative evidence suggested was insufficient as a matter of law to prove alienage conclusively, so the probative value of the judgment admitted was not substantially diminished. Next, we examine the prejudicial nature of the judgment. In this case, the manner in which the judgment was introduced differed substantially from that in Bejar-Matrecios. First, the judgment and commitment was redacted so as to eliminate all information regarding sentencing and any other miscellaneous, irrelevant information. Second, when admitting the evidence, the district court informed the jury that the judgment was to be considered only for the limited purpose of proving alienage. Third, while instructing the jury at the close of trial, the district court reiterated that the judgment may only be considered as to the issue of alienage. The district court therefore took adequate precautions in admitting the judgment to reduce its prejudicial nature and to limit any confusion of the jury. Based on this record, we conclude that there was no abuse of discretion. The district court evaluated alternatives for proving alienage. The only suggestion offered as an alternative to prove alienage, a necessary element of the crime, was Higuera-Llamos’ admission of alienage at the time of apprehension and arrest, which would have been insufficient to establish alienage conclusively. The district court took multiple precautions to decrease the prejudicial effect of the judgment. The district court therefore did not abuse its discretion in admitting the judgment and commitment. III. Higuera-Llamos next argues that the district court abused its" }, { "docid": "23357189", "title": "", "text": "would be an adequate alternative for the government on the issue. The judge overruled the objection and admitted the judgment. The judge gave a limiting instruction, informing the jury that the judgment could only be considered as to alienage and for no other purpose. The judge reiterated the limiting instruction while instructing the jury at the close of trial. The jury found Higuera-Llamos guilty as charged. The parties do not dispute that the district court correctly calculated the sentencing range under the United States Sentencing Guidelines to be an advisory sentencing range of 15 to 21 months’ imprisonment. Pursuant to U.S.S.G. § 4A1.3(a)(2)(E), the district court departed upward two levels for prior similar adult criminal conduct not resulting in a criminal conviction. Therefore, Higuera-Llamos was assigned to Criminal History Category VI, resulting in an advisory range of 24 to 30 months’ imprisonment. The district court explained its decision to depart upward, reciting Higuera-Llamos’ eight prior removals. The court also recounted that Higuera-Llamos had been previously sentenced to forty-five days’ imprisonment for violating 8 U.S.C. § 1325 and eighteen months’ imprisonment for violating 8 U.S.C. § 1326(a). The court explained that neither of these previous punishments appeared to have deterred Higuera-Llamos from committing the same crime once again. The court concluded that a higher sentence was therefore necessary to protect the public against Higuera-Llamos’ willingness to re-offend. The district court then sentenced Higuera-Llamos to thirty months’ imprisonment, to be followed by three years of supervised release. Higuera-Llamos subsequently appealed from both his conviction and sentence. II. Higuera-Llamos argues that the district court abused its discretion in admitting the sanitized Judgment and Commitment related to his previous conviction under 8 U.S.C. § 1326(a). He contends that the prejudicial nature of the judgment substantially outweighed its probative value, and should have been excluded under Rule 403 of the Federal Rules of Evidence. We review a district court’s evidentiary rulings, including its determination that the prejudicial effect of evidence does not outweigh its probative value, for an abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062(9th Cir.2004). The district court is to" }, { "docid": "23357188", "title": "", "text": "illegally. After Higuera-Llamos was transported to the Yuma Border Patrol Station, he again admitted that he was born in Mexico, that he was previously deported from the United States on November 27, 2006, and that he had entered the United States on December 25, 2006 without proper permission. Higuera-Llamos was charged with attempted reentry after deportation, under 8 U.S.C. § 1326(a), as enhanced by 8 U.S.C. § 1326(b)(1). At trial, the district court admitted into evidence a. Judgment and Commitment from Higuera-Llamos’ December 20, 2004 conviction under 8 U.S.C. § 1326(a) for reentry after deportation. The document was redacted and included the following information: the caption of the case, including Higuera-Llamos’ name, a statement that the court had adjudicated that Higuera-Llamos was guilty of violating 8 U.S.C. § 1326(a), illegal reentry after deportation, and the district judge’s signature. Higuera-Llamos’ attorney objected to the admission of this sanitized judgment, arguing that the document was significantly more prejudicial than probative. Higuera-Llamos’ attorney contended that testimony by a border patrol agent indicating that Higuera-Llamos had admitted his alienage would be an adequate alternative for the government on the issue. The judge overruled the objection and admitted the judgment. The judge gave a limiting instruction, informing the jury that the judgment could only be considered as to alienage and for no other purpose. The judge reiterated the limiting instruction while instructing the jury at the close of trial. The jury found Higuera-Llamos guilty as charged. The parties do not dispute that the district court correctly calculated the sentencing range under the United States Sentencing Guidelines to be an advisory sentencing range of 15 to 21 months’ imprisonment. Pursuant to U.S.S.G. § 4A1.3(a)(2)(E), the district court departed upward two levels for prior similar adult criminal conduct not resulting in a criminal conviction. Therefore, Higuera-Llamos was assigned to Criminal History Category VI, resulting in an advisory range of 24 to 30 months’ imprisonment. The district court explained its decision to depart upward, reciting Higuera-Llamos’ eight prior removals. The court also recounted that Higuera-Llamos had been previously sentenced to forty-five days’ imprisonment for violating 8 U.S.C. §" }, { "docid": "23357195", "title": "", "text": "information. Second, when admitting the evidence, the district court informed the jury that the judgment was to be considered only for the limited purpose of proving alienage. Third, while instructing the jury at the close of trial, the district court reiterated that the judgment may only be considered as to the issue of alienage. The district court therefore took adequate precautions in admitting the judgment to reduce its prejudicial nature and to limit any confusion of the jury. Based on this record, we conclude that there was no abuse of discretion. The district court evaluated alternatives for proving alienage. The only suggestion offered as an alternative to prove alienage, a necessary element of the crime, was Higuera-Llamos’ admission of alienage at the time of apprehension and arrest, which would have been insufficient to establish alienage conclusively. The district court took multiple precautions to decrease the prejudicial effect of the judgment. The district court therefore did not abuse its discretion in admitting the judgment and commitment. III. Higuera-Llamos next argues that the district court abused its discretion by increasing his criminal history from Category IV to Category VI based on the district court’s finding that his criminal history was under-represented. We review the sentence imposed by the district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We also review the district court’s application of the Sentencing Guidelines to the facts for an abuse of discretion. United States v. Ellsworth, 456 F.3d 1146, 1149(9th Cir.2006). We recently outlined the framework for sentencing in United States v. Carty, 520 F.3d 984, 990-95 (9th Cir.2008) (en banc). First, the district court must calculate the applicable Guidelines range. Id. at 991. The parties should be given the opportunity to argue for a sentence they believe is appropriate. Id. Next, the court must consider the factors under 18 U.S.C. § 3553(a), including the sentencing range established by the Guidelines, to determine whether it supports the proposed sentence. Id. If the district court determines that a sentence outside of the Guidelines is" }, { "docid": "22858852", "title": "", "text": "186. These were Class E felonies. By contrast, Mr. Verdin-Garcia was convicted of one count of conspiracy and two counts of distribution of methamphetamine, Class A felonies, plus eleven counts of the Class E felony of using a communication facility. R., Vol. II, doc. 214. The evidence bountifully established that Mr. Verdin-Garcia was the kingpin, or one of two, of the Kansas City branch of this conspiracy, that he was responsible for distributing very large amounts of drugs, and that he was using his own family members to carry out his plans. We would likely reverse if his sentence were not disparate from theirs. Moreover, even if sentencing disparities among co-defendants may be considered by district courts in the exercise of their sentencing discretion, see Gall, 128 S.Ct. at 599-600, 18 U.S.C. § 3553(a)(6) requires a judge to take into account only disparities nationwide among defendants with similar records and Guideline calculations. See United States v. Davis, 437 F.3d 989, 997 (10th Cir.2006); United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir.1997). It is not reversible error for a sentencing court to adhere to this interpretation in its exercise of sentencing discretion. Accordingly, “tak[ing] into account the totality of the circumstances,” Gall, 128 S.Ct. at 597, we are satisfied that the life sentences of both appellants are reasonable. III. CONCLUSION For the reasons stated above, we AFFIRM the judgment of conviction and sentence as to both appellants, Fidencio Ver-din-Garcia and Miguel Romero. . Mr. Romero did file a pro se motion to suppress \"any and all evidence in the case at bar.” Dist. Dkt. Doc. 130, at 1. The motion did not otherwise specify what evidence was meant or offer any reason why it should be suppressed. This is insufficient to preserve the issue for Mr. Romero. . Although Mr. Verdin-Garcia and Mr. Romero filed a joint brief in this appeal, the arguments relating to calculation of drug amounts refer only to Mr. Romero’s PSR, and mention only Mr. Romero's objections thereto. We therefore consider Mr. Verdin-Garcia not to have raised these arguments on appeal. Were we to examine" }, { "docid": "23357187", "title": "", "text": "WALLACE, Senior Circuit Judge: Higuera-Llamos appeals from his conviction under 8 U.S.C. § 1326 for illegal reentry following deportation and his sentence of thirty months’ imprisonment. We have jurisdiction over Higuera-Llamos’ timely filed appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm. I. Higuera-Llamos has previously been removed or deported from the United States on eight separate occasions: July 24, 2002, August 19, 2002, December 16, 2002, December 27, 2002, January 20, 2004, June 8, 2004, June 17, 2004 and November 27, 2006. He was convicted under 8 U.S.C. § 1325, improper entry by an alien, on December 9, 2003 and sentenced to forty-five days’ imprisonment. He was convicted under 8 U.S.C. § 1326(a), reentry of a removed alien, on December 20, 2004 and sentenced to eighteen months’ imprisonment. On December 25, 2006, less than one month after Higuera-Llamos’ most recent deportation, border patrol agents apprehended Higuera-Llamos in Arizona. Higuera-Llamos admitted to the agents that he was a citizen of Mexico and that he was present in the United States illegally. After Higuera-Llamos was transported to the Yuma Border Patrol Station, he again admitted that he was born in Mexico, that he was previously deported from the United States on November 27, 2006, and that he had entered the United States on December 25, 2006 without proper permission. Higuera-Llamos was charged with attempted reentry after deportation, under 8 U.S.C. § 1326(a), as enhanced by 8 U.S.C. § 1326(b)(1). At trial, the district court admitted into evidence a. Judgment and Commitment from Higuera-Llamos’ December 20, 2004 conviction under 8 U.S.C. § 1326(a) for reentry after deportation. The document was redacted and included the following information: the caption of the case, including Higuera-Llamos’ name, a statement that the court had adjudicated that Higuera-Llamos was guilty of violating 8 U.S.C. § 1326(a), illegal reentry after deportation, and the district judge’s signature. Higuera-Llamos’ attorney objected to the admission of this sanitized judgment, arguing that the document was significantly more prejudicial than probative. Higuera-Llamos’ attorney contended that testimony by a border patrol agent indicating that Higuera-Llamos had admitted his alienage" }, { "docid": "6846560", "title": "", "text": "right to object to their admission. See Garcia, 988 F.2d at 967-68 (holding that a defendant did not waive his right to object to the admission of evidence of his prior conviction, even though he had mentioned the conviction during voir dire). Defendant objected before trial and twice during trial. Those objections were timely and sufficient. B. Standard of Review We review the district court’s evidentiary rulings for abuse of discretion. Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1399 (9th Cir.1996). A district court abuses its discretion when it makes an error of law or rests its decision on clearly erroneous findings of material fact. United States v. Washington, 98 F.3d 1159, 1163 (9th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 44, 139 L.Ed.2d 11 (1997). C.Relevance A defendant’s prior conviction is relevant and admissible when such a conviction is an element of a defendant’s charged offense. Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 649-50, 136 L.Ed.2d 574 (1997). As noted, the government charged defendant with: (1) being a deported alien found in the United States without permission, 8 U.S.C. § 1326(a); and (2) being such an alien after having been deported following a felony conviction, 8 U.S.C. § 1326(b)(1). The district court held that the latter charge was a separate offense, which required the government to prove that defendant had been convicted of a felony. See United States v. Gonzalez-Medina, 976 F.2d 570, 572 (9th Cir.1992) (“[Sjections 1326(a) and 1326(b)(1) (and, a fortiori, 1326(b)(2)) constitute separate crimes.”). Thus, the district court admitted evidence of defendant’s prior felony convictions. That holding is no longer good law due to a recent Supreme Court case. After the parties briefed this case, the Supreme Court decided Almendarez-Torres v. United States, — U.S. -, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). In Almenda-rez-Torres, the defendant was convicted of and sentenced for (1) being a deported alien found in the United States without permission, 8 U.S.C. § 1326(a), and (2) being such an alien after having been deported following an aggravated felony conviction, 8 U.S.C. § 1326(b)(2). Id." }, { "docid": "22468310", "title": "", "text": "Martinez asserts that the admission of evidence of his two prior deportations violated Rule 404(b) of the Federal Rules of Evidence. However, Rule 404(b) does not exclude evidence forming an essential element of the charged offense. See United States v. DeGeorge, 380 F.3d 1203, 1220 (9th Cir.2004). Because proving that the defendant has been previously removed is an essential element of the government’s case under § 1326, the district court did not abuse its discretion under Rule 404(b) in admitting evidence of prior deportations. Martinez also claims, under Rule 403, that the probative value of evidence that he had been twice deported was outweighed by its prejudicial effect. However, because the evidence of each deportation was dissimilar, the government was entitled to introduce evidence of both deportations to hedge the risk that the jury may reject the offered proof of one deportation, but not the other. See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir.2005). Also, the government did not have any alternative means of proving pri- or deportation. See Old Chief v. United States, 519 U.S. 172, 182, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Because the district court did not abuse its discretion by admitting evidence that Martinez had been previously removed on two separate occasions, we affirm Martinez’s conviction and move on to consider his two challenges to his sentence. Ill Martinez first argues, relying on Apprendi and its progeny, that the district court erred by judicially finding that, because Martinez’s prior “removal was subsequent to a conviction for commission of an aggravated felony,” § 1326(b)(2), Martinez’s statutory-maximum sentence was twenty years, rather than the generally-applicable two-year maximum sentence found in § 1326(a). He argues that the district court’s finding that he was removed after being convicted of an aggravated felony violates Apprendi because it increased his statutory-maximum sentence on the basis of facts not alleged in the indictment, proven to the jury, or admitted by him. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the" }, { "docid": "5321423", "title": "", "text": "are not at issue in this case. The only issue in this case is the firearm charge. The evidence is being admitted for the purposes of showing you the circumstances under which the firearm was found. A district court judge acts within his sound discretion in admitting evidence of prior criminal or wrongful acts when the evidence is relevant to an issue in question other than defendant’s character, when clear and convincing evidence exists that defendant committed the prior wrongful acts, and when potential unfair prejudice of the evidence does not substantially outweigh its probative value. See United States v. Simon, 767 F.2d at 526. When drug-related evidence is “closely and integrally related” to the issue of ownership and possession of firearms, the district court does not abuse its discretion in admitting the drug-related evidence in a possession of a firearm case. Id. After reviewing all the evidence in this case we hold that the drug-related evidence, including the paraphernalia, was “closely and integrally related” to the issue of ownership and possession, and that the district court did not abuse its discretion in admitting this evidence. Sufficiency of the Evidence Defendant argues that his conviction must be reversed because there was insufficient evidence submitted at trial to prove that he possessed the firearm. We review de novo challenges to the sufficiency of the evidence presented at trial. United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir.2009). In conducting this review, we consider the evidence in the light most favorable to the jury’s verdict and draw all reasonable inferences in the Government’s favor. United States v. McAtee, 481 F.3d 1099, 1104 (8th Cir.2007). We do not weigh the evidence or assess the credibility of witnesses. We will reverse a conviction only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Santana, 524 F.3d 851, 853 (8th Cir.2008). To convict Defendant of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1), the government had to prove beyond a reasonable doubt that (1) Defendant had previously been convicted of a" }, { "docid": "6846564", "title": "", "text": "United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997) (applying harmless-error analysis to the district court’s erroneous admission of evidence of a defendant’s prior conviction). When a district court erroneously admits a prior conviction, the government must prove that the prejudice that the error caused was, more probably than not, harmless. The government- satisfies that requirement by providing a “fair assurance” that the error did not substantially sway the verdict. See id. (applying those standards to the erroneous admission of evidence of prior convictions); United States v. Bauer, 132 F.3d 504, 510 (9th Cir.1997) (applying those standards to violations of the attorney-client privilege). The government has met that burden here. Defendant’s prior convictions are unrelated to his current charge. That being so, it is not likely that the jury would have concluded that defendant was a “repeat offender” of similar acts. See Old Chief, 117 S.Ct. at 652 n. 8 (“It is true that a prior offense may be so far removed in time or nature from the current gun charge and any others brought with it that its potential to prejudice the defendant unfairly will be minimal.”) (emphasis added). In this context, the overwhelming proof of defendant’s guilt makes it unlikely that the erroneous admission of his prior convictions substantially swayed the jury’s verdict. CONCLUSION Defendant’s conviction for violating 8 U.S.C. § 1326(a) is AFFIRMED. The case is REVERSED and REMANDED with instructions to vacate defendant’s conviction for violating 8 U.S.C. § 1326(b)(1) and to resentence defendant under count 1. . The version of 8 U.S.C. § 1326(a) (1994) that applies to defendant provides: (a) Subject to subsection (b) of this section any alien who - (1) has been arrested and deported or excluded and deported, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported," }, { "docid": "18415512", "title": "", "text": "Removals Cruz-Escoto’s next argument is that the district court improperly admitted evidence of his previous illegal entries and removals. He argues that this evidence violates Federal Rules of Evidence 401, 403, and 404(b). While Rule 404(b) does prohibit the admission of “other crimes, wrongs, or acts” to prove the propensity of a defendant, evidence that is a necessary element of the crime charged is not considered “[e]vi-dence of other crimes, wrong, or acts” within the meaning of the Rule. United States v. Campbell, 774 F.2d 354, 356 (9th Cir.1985) (alteration in original) (quoting Fed.R.Evid. 404(b)). Therefore, evidence showing that Cruz-Escoto had previously been deported is not Rule 404(b) evidence because the government had to prove this element of the crime. See 8 U.S.C. § 1326(a)(1). Cruz-Escoto argues that the government’s use of multiple prior deportations, when proof of only one was necessary, constitutes reversible error. We find no error in permitting this evidence because in other contexts we have permitted the introduction of more than one predicate act to establish an element of the crime. See United States v. Weiland, 420 F.3d 1062, 1078 (9th Cir.2005) (finding harmless error in the use of four prior felony convictions to establish defendant’s status as a felon under 18 U.S.C. § 922(g)(1)), cert. denied, — U.S.-, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006). Moreover, the district court gave two limiting instructions to minimize the potential prejudice. See United States v. Ba-singer, 60 F.3d 1400, 1408 (9th Cir.1995). The first limiting instruction informed the jury that it could only use the 2000 deportation to show citizenship, absence of mis take or accident, and for deportation, which was an element of the offense. The second limiting instruction was given after closing arguments and informed the jury again of the limited purpose of the “other acts” evidence. E. Batson Allegations Cruz-Escoto contends that the government violated the Equal Protection Clause because it impermissibly used peremptory challenges to exclude two Hispanic potential jurors. The Fourteenth Amendment prohibits racial discrimination in the jury selection process. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69" }, { "docid": "22858851", "title": "", "text": "in criminal conduct as long as he has the opportunity to do so.” Id. at 2281. As to Mr. Romero, after considering his conduct and observing his actions the judge stated, “It’s apparent to me that Mr. Romero does not have any respect for the law.” Id. at 2308. Mr. Romero displayed a “lack of remorse,” and had a “propensity to reoffend and come back into this country after his prior conviction” and deportation for drug trafficking. Id. The judge reiterated as well the magnitude of Mr. Romero’s crimes. Id. at 2306-07. In light of these explanations, we cannot find the sentences an abuse of discretion. Mr. Verdin-Garcia argues that sentencing disparity among co-defendants requires a lower sentence. His co-defendants Graciela Reynoso and Maria Verdin received respective sentences of 14 and 48 months. But Ms. Reynoso, the defendant’s wife, pleaded guilty to one count of misprision of felony, and Ms. Verdin, his sister, to one count of use of a communication facility to facilitate the commission of a drug felony. See Dist. Dkt. Docs. 183, 186. These were Class E felonies. By contrast, Mr. Verdin-Garcia was convicted of one count of conspiracy and two counts of distribution of methamphetamine, Class A felonies, plus eleven counts of the Class E felony of using a communication facility. R., Vol. II, doc. 214. The evidence bountifully established that Mr. Verdin-Garcia was the kingpin, or one of two, of the Kansas City branch of this conspiracy, that he was responsible for distributing very large amounts of drugs, and that he was using his own family members to carry out his plans. We would likely reverse if his sentence were not disparate from theirs. Moreover, even if sentencing disparities among co-defendants may be considered by district courts in the exercise of their sentencing discretion, see Gall, 128 S.Ct. at 599-600, 18 U.S.C. § 3553(a)(6) requires a judge to take into account only disparities nationwide among defendants with similar records and Guideline calculations. See United States v. Davis, 437 F.3d 989, 997 (10th Cir.2006); United States v. Gallegos, 129 F.3d 1140, 1143 (10th Cir.1997). It is" }, { "docid": "23357190", "title": "", "text": "1325 and eighteen months’ imprisonment for violating 8 U.S.C. § 1326(a). The court explained that neither of these previous punishments appeared to have deterred Higuera-Llamos from committing the same crime once again. The court concluded that a higher sentence was therefore necessary to protect the public against Higuera-Llamos’ willingness to re-offend. The district court then sentenced Higuera-Llamos to thirty months’ imprisonment, to be followed by three years of supervised release. Higuera-Llamos subsequently appealed from both his conviction and sentence. II. Higuera-Llamos argues that the district court abused its discretion in admitting the sanitized Judgment and Commitment related to his previous conviction under 8 U.S.C. § 1326(a). He contends that the prejudicial nature of the judgment substantially outweighed its probative value, and should have been excluded under Rule 403 of the Federal Rules of Evidence. We review a district court’s evidentiary rulings, including its determination that the prejudicial effect of evidence does not outweigh its probative value, for an abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062(9th Cir.2004). The district court is to be given “wide latitude” when it balances the prejudicial effect of proffered evidence against its probative value. United States v. Spencer, 1 F.3d 742, 744 (9th Cir.1993), quoting United States v. Kinslow, 860 F.2d 963, 968 (9th Cir.1988). Further, we are to “evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.” Old Chief v. United States, 519 U.S. 172, 183 n. 6, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). Rule 403 of the Federal Rules of Evidence states that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of ... needless presentation of cumulative evidence.” To determine whether the prejudicial nature of a specific piece of evidence outweighs its probative value, a district court should consider whether the government could have made the same showing through less prejudicial means. United States v. Sine, 493 F.3d 1021, 1035 (9th Cir.2007). “The Supreme Court has" }, { "docid": "22463315", "title": "", "text": "between the prior acts and the current offense would, improperly affect the jury’s deliberations.” Houser, 929 F.2d at 1373. Nonetheless, we held the district court did not abuse its discretion in admitting the prior conviction because the judge had carefully instructed the jury and had balanced the probative value of the evidence against its prejudicial effect. Id. The district court in this case engaged in the requisite balancing and determined the probative value of the prior conviction evidence outweighed its prejudicial effect. After reviewing the record, we do not find the district court abused its discretion in ruling that the probative value outweighed any prejudice to Arambula. Furthermore, the judge gave an appropriate instruction limiting the purpose for which the jury could consider evidence of the defendant’s prior conviction. See Rubio-Villareal, 927 F.2d at 1503 (holding probative value of prior drug conviction outweighed any prejudice because high need for evidence coupled with judge’s careful limiting instruction weighed in favor of admission). Therefore, because all the prerequisites for admitting evidence of prior bad conduct were satisfied, we affirm the admission of Arambula’s prior drug conviction. In addition to the prior drug conviction, Arambula argues that the district court erred in admitting evidence of two prior arrests under Rule 404(b), one for being an undocumented alien and one for illegal possession of a firearm. However, the Government claims Arambula has waived any objection on appeal because he did not object at trial to the admission of his prior arrests. We reject the Government’s contention. Although Arambula’s objection lacked specificity, it was sufficient to preserve the issues on appeal. Arambula objected during the motion in limine to evidence of the prior drug arrest, including all charges that were the product of that arrest. At trial, Arambula made a timely objection after the Government questioned the arresting officer as to what charges were brought against Arambula as a result of the prior drug offense. After the objection was overruled, the officer stated that he had also arrested Arambula for being an undocumented alien and for illegal possession of a firearm. Arambula’s objection encompassed all" }, { "docid": "23357192", "title": "", "text": "held that ‘what counts as the Rule 403 “probative value” of an item of evidence ... may be calculated by comparing evidentiary alternatives.’ ” Id., quoting Old Chief, 519 U.S. at 184, 117 S.Ct. 644. In this case, Higuera-Llamos was prosecuted under 8 U.S.C. § 1326(a). That section provides that an alien who unlawfully enters or attempts to enter the United States after he “has been denied admission, excluded, deported or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding” is subject to a fine or imprisonment. Alienage is a specific element of this offense, and the government must prove alienage beyond a reasonable doubt. United States v. Smith-Baltiher, 424 F.3d 913, 921 (9th Cir.2005). We have held that admission of a prior judgment to show alienage, as required to secure a conviction under 8 U.S.C. § 1326(a), may constitute reversible error where no limiting instruction is given and where ample alternatives have been offered to prove alienage. United States v. Bejar-Matrecios, 618 F.2d 81, 84 (9th Cir.1980). In Bejar-Matrecios, the district court admitted a certified judgment of the defendant’s guilty plea to 8 U.S.C. § 1325, a misdemeanor illegal entry, for the purpose of proving alienage. Id. at 83. No limiting instruction was given. Id. at 84. We held that there was a substantial possibility that the jury may have mistaken the admission of the guilty plea as evidence of the defendant’s criminal disposition. Id. Further, the government had introduced seven documents from the defendant’s earlier deportation that “would strongly tend to prove that he was an alien.” Id. The court reasoned that although “[ejvidence of a prior conviction that conclusively establishes a material element of a crime would normally be highly probative,” the manner in which the judgment was introduced “substantially diminished its probative value.” Id. The instant case is clearly distinguishable. First, we examine the probative value of the judgment as tending to prove Higuera-Llamos’ alienage. A previous conviction under 8 U.S.C. § 1326(a) establishes that a defendant was an alien at the time of that conviction, and is" } ]

[ { "docid": "2753551", "title": "", "text": "benefits. We must, therefore, focus on whether the Retirees retired voluntarily or were constructively discharged. See Zepp v. Rehrmann, 79 F.3d 381, 385-386 (4th Cir.1996). To make this determination, we examine “the surrounding circumstances to test the ability of the employee to exercise free choice.” Scharf v. Department of the Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983). Employee resignations and retirements are presumed to be voluntary. See Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir.1992). This presumption remains intact until the employee presents evidence to establish that the resignation or retirement was involuntarily procured. Id. If an employee retires of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights. See Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (11th Cir.1995); Stone v. University of Md. Medical Sys. Corp., 855 F.2d 167, 173 (4th Cir.1988). There appear to be two circumstances in which an employee’s resignation or retirement will be deemed involuntary for due process purposes: (1) when the employer forces the resignation or retirement by coercion or duress, or (2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a material fact to the employee. See Hargray, 57 F.3d at 1568. The Retirees contend that they signed the supplemental agreements because of material misrepresentations made by Kelly Ryan in the letter she sent on behalf of Sedgwick James to an attorney for the F.O.P. The Retirees contend that Ryan’s letter led them to believe that if they did not sign the supplemental agreements, they would not only lose their Heart and Lung Act benefits, but also their pension and any available worker’s compensation benefits. Ryan’s letter, dated December 3,1992, stated, in relevant part: Enclosed are various supplemental agreements for the following claimants who are currently receiving Heart and Lung Benefits. The medical information in their files indicate that they are suffering from a permanent disability and therefore are" } ]

[ { "docid": "2703392", "title": "", "text": "required to make the allegations public. See Winegar, 20 F.3d at 899 (holding that a school district’s communications to students and an outside investigator were sufficiently public). Finally, Wright denied that was anything wrong or improper about the bunk bed exchange during the meeting with Wolbers regarding his suspension and has continued to do so. In light of the above discussion, the Court finds the circumstances of Wright’s termination implicated a liberty interest, entitling him to a hearing. 2. Property Interest The key case involving a property interest in employment is Cleveland Board of Education v. Loudemill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), though the Eighth Circuit has found that “the due process requirements pronounced in Loudemill apply equally to liberty and property interests.” Coleman, 147 F.3d at 755. In Loudermill, the plaintiff was hired as a security guard, which was a classified civil service position under Ohio law, meaning that he could be terminated only for cause. Id. at 535, 105 S.Ct. 1487. The plaintiff was dismissed when the employer discovered that he had been convicted of a felony, though he had indicated otherwise on his job application. Id. The dismissal was via letter, and plaintiff had no opportunity to respond. Id. The Supreme Court held that the Ohio statute created a property interest in employment because it allowed termination only for specific reasons. Id. at 538-39, 105 S.Ct. 1487. This property interest entitled the plaintiff to a hearing prior to his termination. Id. at 542, 105 S.Ct. 1487. Wright asserts that he is a “tenured public employee” by virtue of the KCHC employment policies, which he claims create a property interest in his employment because they require employees to provide a certain amount of notice before resigning and obligate KCHC to provide notice before terminating an employee unless the termination is for gross misconduct. Defendants assert that KCHC policies did not obligate them to give Wright notice of his termination because he was terminated for gross misconduct. Further, Defendants presented a copy of the employment application, signed by Wright, specifically stating that his employment" }, { "docid": "650300", "title": "", "text": "pleadings, Knappenberger’s complaint must allege facts that, if true, show that Phoenix took an adverse employment action that deprived him of a constitutionally protected liberty or property interest without due process. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Bd. of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Phoenix does not dispute that Knappenberger had a property interest in his employment. Rather, Phoenix asserts that Knappenberger’s complaint established only that Knappenberger voluntarily retired, and therefore failed to allege that Phoenix de-’ prived him of a property or liberty interest. Knappenberger contends that his' complaint adequately establishes that he was constructively discharged because the police department took actions that required him to choose between retirement or termination without health insurance. We have previously considered the question whether an employee’s decision to retire or resign can constitute a constructive discharge for purposes of a § 1983 action, but only where an employee alleged he resigned due to intolerable working conditions. See Huskey v. City of San Jose, 204 F.3d 893, 901 (9th Cir.2000). In Huskey, we held that an employee has suffered a constructive discharge where “a reasonable person in his position would have felt that he was forced to quit because of intolerable and discriminatory working conditions,” Huskey, 204 F.3d at 900; cf. Wallace, 479 F.3d at 626 (articulating this standard for a “constructive discharge” for purposes of the Uniformed Services Employment and Reemployment Rights Act); Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987) (same under Title VII). Knappenberger’s complaint failed to allege facts amounting to the type of constructive discharge considered in Huskey and similar cases. We have acknowledged, however, that an employee may demonstrate that the decision to resign or retire was involuntary under circumstances not involving intolerable or discriminatory working conditions. In Kalvinskas v. California Institute of Technology, 96 F.3d 1305 (9th Cir.1996), a long-time employee was effectively given a choice between retiring and receiving his pension or remaining employed but having the disability benefits he was receiving reduced to nothing." }, { "docid": "5398247", "title": "", "text": "plaintiff must show that a person acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.1995). The essence of plaintiffs poorly articulated § 1983 claim appears to be that by confronting plaintiff with the allegations of the female correction officer and asking for his resignation without offering to hold a hearing, the County defendants constructively discharged him in violation of his Fourteenth Amendment due process property interest. See Pl.’s Am. Compl. at ¶ 10; see also Pl.’s Resp. to County Defs.’ Mot, for Summ. J. at 1-3. In addition, plaintiff appears to be arguing that his due process liberty interest was also violated by statements made to the press and others by the County defendants concerning his resignation and the accusations of the female correction officer that plaintiff had sexually harassed her. See PL’s Dep. at 132. 1. Plaintiff’s due process property interest. An employee’s resignation from public employment is presumed to be vol untary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir.1999). The Third Circuit in Leheny explained: This presumption remains intact until the employee presents evidence to establish that the resignation ... was involuntarily procured. If an employee retires [or resigns] of his own free will, even though 'prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights. Id. (emphasis added) (internal citations omitted). An employee’s resignation will be considered involuntary if: (1) the employer forces the resignation by using coercion or duress, or (2) the employee resigned because the employer deceived or misrepresented a material fact to the employee. Id. (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995)). To determine whether the resignation is involuntary, the court must look at all the" }, { "docid": "20155677", "title": "", "text": "of a female Acting Chief of Police. Yet, defendants did not act until July 8th, when the weekend had already ended. More importantly, however reprehensible plaintiffs’ conduct may have been, so long as plaintiffs did not voluntarily resign, they are entitled to procedural due process before being terminated. Under the Due Process Clause of the Fourteenth Amendment, if plaintiffs possess property rights or liberty interests in their continued public employment, then they are entitled to due process before the government may deprive them of their jobs. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Property interests are not created by the Constitution, but by external sources such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). They exist when a person has not just a unilateral expectation, but a legitimate claim of entitlement to the government benefit. Id. To constitute a property interest, there must be “rules or mutually explicit understandings that support [the] claim of entitlement to the benefit.” Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The “hallmark” of a property interest “is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (citations omitted). Thus, if a public employee may only be terminated for cause, the employee possesses a property interest in his or her employment. Richardson v. Felix, 856 F.2d 505, 509 (3d Cir.1988). In the present case, we must look to the state law of Delaware and to Ordinance No. 54 of the Town of Fenwick Island to determine whether plaintiffs possessed property interests in their employment. Arguably, 11 Del. C. § 9203 (1987) prevents termination of any police officer except for cause. That statute provides that any officer is entitled to a hearing conducted pursuant to specified procedures if charged with any type of disciplinary infraction. The Third Circuit has held that if a" }, { "docid": "17414056", "title": "", "text": "violation of due process rights, this court applies a two-step analysis. First, we determine whether the claimant has a property interest that entitles him to due process protection. Leary v. Daeschner, 228 F.3d 729, 741-42 (6th Cir.2000) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). Under state law, government and civil service employees may have a property right in their continued employment. See Loudermill, 470 U.S. at 538, 105 S.Ct. 1487. Second, if the claimant has such an interest, this Court must determine “what process is due.” Id. at 541, 105 S.Ct. 1487. The County concedes that Relford possessed a property interest in his continued employment because Kentucky law provides for dismissal or suspension only upon certain showings. See K.R.S. § 67A.280 (“No employee in the classified service of urban-county government, ... shall be dismissed, suspended, or reduced in grade or pay for any reason except inefficiency, misconduct, insubordination, or violation of law involving moral turpitude.”). The district court, however, determined that Relford could not maintain his claim for a due process violation because he voluntarily resigned from his job with the County. In addition, the district court held that Relford received notice of the County’s intent to seek his termination but declined to use the administrative appeals process, which would have entitled him to a hearing and an opportunity to be heard. Relford argues that he was constructively discharged. On January 21,1998, after he tested positive for the use of unlawful drugs, Relford resigned in a letter, stating, “I Robert Relford having found another job with better [and] less stressful working conditions do resign effective Wendsday [sic], Jan 21[,] 1998.” J.A. at 93. Thus, the record supports the conclusion that Relford resigned because he found other employment. In addition, Relford received two notices that the County was seeking his termination; first, after he refused the RCT, and second, after he tested positive as an EAP participant. In the instance of the RCT, Relford received a hearing before the Commission during which he was given an opportunity to present evidence." }, { "docid": "1506262", "title": "", "text": "deprived of his property interest in continued employment with the School District by Defendants, acting under color of state law, without due process of law. It is undisputed that Singer had a property interest in continued employment, having been employed by the School District since 1986. Defendants assert he voluntarily resigned his employment in June 1994. They point out Singer had the right to demand the School District initiate procedures set forth in the Teacher Employment, Compensation and Dismissal Act, Colo.Rev.Stat. § 22-63-301, but did not exercise that right. In so doing, Defendants argue, Singer voluntarily relinquished his property interest and was not deprived of such interest without due process. Singer maintains he did not resign voluntarily but was constructively discharged, citing his letter dated May 24, 1994 addressed to Mrs. Susan Koskove of Denver Public Schools. The Tenth Circuit has held that where an employee voluntarily resigned her employment of her own free will, even though doing so due to actions of defendants, she voluntarily relinquished her property interest and was not deprived of such interest without due process. Parker v. Board of Regents of Tulsa Jr. College, 981 F.2d 1159, 1162 (10th Cir.1992) (citing Stone v. University of Md. Medical Sys. Corp., 855 F.2d 167, 173 (4th Cir.1988)). If, however, the resignation was “so involuntary it amounted to a constructive discharge, defendants did deprive her of her property interest without due process.” Id. “A resignation will be involuntary and coerced when the totality of the circumstances indicate the employee did not have the opportunity to make a free choice.” Id. The factors to be considered are “ '(1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; and (4) whether he was permitted to select the effective date of resignation.’ ” Id. (quoting Stone, 855 F.2d at 174.) See also Lenz v. Dewey, 64 F.3d 547, 551-52 (10th Cir.1995) (citing these factors as relevant in assessing the voluntariness of an employee’s resignation)." }, { "docid": "5398254", "title": "", "text": "resign in response to Brackbill and Billota’s request but rather you resigned from an accumulation of circumstances — . A. Yes. Q. —that caused you in your own mind to form your own decision of your own volition. A. Yes. Id. at 137-138. Based on the above-identified deposition testimony, it is clear, under the totality of the circumstances, that plaintiffs resignation was voluntary, even if prompted by some action of the County defendants, and not the result of duress or coercion imposed by the County defendants. See Leheny, 183 F.3d at 227; cf. Angarita v. St. Louis County, 981 F.2d 1537, 1544-45 (8th Cir.1992) (finding employee police officers involuntarily resigned where, among other factors, employer did not let them leave room before signing resignation letter, requests to speak to supervisors were denied, and threats of disclosure to family members were made); Paroczay v. Hodges, 297 F.2d 439, 440-41 (D.C.Cir.1961) (finding employee’s resignation to be involuntary where employee, who repeatedly asked to leave and consult with lawyer, was told to sign resignation letter before he left room or charges would be filed immediately). Accordingly, plaintiffs claim that his due process property interest has been violated fails as a matter of law. 2. Plaintiffs due process liberty interest. The court next addresses what appears to be a claim by plaintiff that the County defendants deprived him of a liberty interest in having his name free of the stigma attached to the accusations of his alleged sexual harassment of a correction officer. Like his property interest claim, however, plaintiffs own voluntary resignation defeats this claim as well. A liberty interest of a government employee “is implicated when he has been terminated and the government has made ‘a charge against him that might seriously damage his standing and associations in the community’ or ‘imposed upon him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.’ ” Freeman v. McKellar, 795 F.Supp. 733, 737 (E.D.Pa.1992) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also Pl.’s" }, { "docid": "15909056", "title": "", "text": "Minn., 614 N.W.2d 764, 773 (Minn.App.2000). In these circumstances, even if a terminated public employee may bring a breach-of-contract action in a trial court after completing certiorari review in the Minnesota Court of Appeals, the district court properly limited Larson to nominal damages in this collateral lawsuit. II. The Due Process Claim. A public employee may not be deprived of a property interest in continued employment “except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The City concedes that Larson had a property interest in continued employment. Due process requires “some kind of a hearing” prior to the termination. If a full post-termination hearing is available, the pre-termination hearing may be “something less than a full evidentiary hearing” but should serve as an “initial check against mistaken decisions.” Id. at 542, 545-46, 105 S.Ct. 1487. Larson argues he was denied both pre-termination and post-termination due process. These are issues of federal constitutional law. We review the grant of summary judgment de novo. See Flath v. Garrison Pub. Sch. Dist. No. 51, 82 F.3d 244, 246 (8th Cir.1996). A. The Pre-Termination Process. Larson was suspended in mid-December 1996. He testified that the reasons given for the suspension were “negative attitude and resentment.” During the suspension, the City continued its investigation of Larson’s job performance and uncovered additional evidence he had harassed City employees and failed to carry out the functions of his job. On December 30, Larson’s immediate supervisor, Public Works Director Donald Eisenhuth, met with Larson and informed him that he should resign or the City would terminate him. Larson testified that the reason given by Eisenhuth at this meeting was Larson’s “management style.” On January 2, 1997, Larson submitted his resignation. When he rescinded the resignation some days later, the City sent him a formal notice of termination offering him five days “to request in writing the reasons for your termination.” Larson made no such request. Larson contends that the December 30 meeting with Eisenhuth failed to meet the minimal requirements of pretermination due process" }, { "docid": "23566962", "title": "", "text": "v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The three federal rights involved in this case are deprivation of a property right without the due process of law, deprivation of a liberty right without the due process of law, and violation of Captain Workman’s First Amendment right to free speech. After examining each alleged constitutional violation separately, we conclude Captain Workman has failed to show Sheriff Jordan and Undersheriff Dill violated a clearly established federal constitutional right. A. DEPRIVATION OF A PROPERTY INTEREST Captain Workman asserts that Sheriff Jordan and Undersheriff Dill deprived him of a property interest without the procedural protections of the Due Process Clause. Captain Workman claims his property interest is his continued employment with the Sheriffs Department. Weld County, Colorado, is a home rule county and the applicable county employee policy provides employment can only be terminated “for cause.” Sheriff Jordan and Undersheriff Dill concede that Captain Workman does have a state-defined property interest in continued employment with the Sheriff’s Department. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (citing Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972)). Although Captain Workman has a property interest in continued public employment, we fail to find a deprivation of that property interest. Because a procedurally adequate posttermination hearing actually resulted in Captain Workman’s reinstatement, together with back pay for the temporary deprivation of his employment, he cannot now state claim under § 1983 for loss of a constitutionally protected property interest in employment. Our decision in Archuleta v. Colorado Dep’t of Institutions, 936 F.2d 483 (10th Cir.1991), controls. In Archuleta, a public employee was terminated without cause but was later reinstated with back pay by the state personnel board. Id. at 489. When the employee claimed a § 1983 violation of her substantive due process rights to continued employment, we held “the procedure required by the Due Process Clause served its purpose — it protected the plaintiff against arbitrary state action by restoring to her" }, { "docid": "650303", "title": "", "text": "in requesting or obtaining the resignation effectively deprived the employee of free choice in the matter.” Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir.1992) (internal quotation marks omitted); see also Leheny v. City of Pittsburgh, 183 F.3d 220, 227-28 (3rd Cir.1999); Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995) (per curiam); Parker v. Bd. of Regents, 981 F.2d 1159, 1162 (10th Cir.1992); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir.1988); cf. Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (noting that the constructive discharge concept was originally developed by the National Labor Relations Board to address situations in which employers coerced employees to resign). Accordingly, the district court’s ruling that Knappenberger could not establish he was deprived of a liberty or property interest because he did not allege he retired after facing “intolerable and discriminatory working conditions” was too limited; a retirement or resignation may be involuntary and constitute a deprivation of property for purposes of a due process claim in the absence of intolerable working conditions. But even under a coercion theory, Knappenberger’s complaint does not allege an involuntary retirement. It is the employee’s burden to come forward with sufficient evidence to demonstrate that “a reasonable person in [his] position would feel he had no choice but to retire.” Kalvinskas, 96 F.3d at 1308. In evaluating such claims of coercion, we determine voluntariness by an objective standard, rather than by the employee’s purely subjective evaluation; reject cases in which the employee did have a choice, even if between comparatively unpleasant alternatives; and consider additional case-specific factors that cut against a finding of coercion, such as whether the employee was given an alternative to resignation or retirement, understood the choice, had a reasonable time in which to decide, or could select the timing of the retirement or resignation. See, e.g., Hargray, 57 F.3d at 1568-70; Angarita, 981 F.2d at 1544. In this case, Knappenberger does not allege facts that, if taken as true, would meet this standard. His complaint alleges" }, { "docid": "2958613", "title": "", "text": "employee who “cannot show that she was actually terminated” — for purposes of constitutional or federal statutory violations — to demonstrate that because her “resignation ... was involuntary, [it] was effectively a termination.” Keyes v. Dist. of Columbia, 372 F.3d 434, 438 (D.C.Cir.2004); accord Aliotta v. Bair, 614 F.3d 556, 566 (D.C.Cir.2010) (“[T]he doctrine of constructive discharge enables an employee to overcome the presumption of voluntariness [of a resignation] and demonstrate she suffered an adverse employment action by showing the resignation or retirement was, in fact, not voluntary.”) (emphasis added). Particularly important is that, in Keyes, establishing an “adverse action” was essential to plaintiffs statutory and constitutional claims, including a deprivation of a liberty interest under the Due Process Clause. See 372 F.3d at 437. Although the court ultimately agreed with the district court that, on the summary-judgment record before it, Keyes had failed to adduce evidence of involuntary separation, it nevertheless pointed out that, as a general matter, proof of involuntariness would permit the liability question to be put to a jury. See id. at 438. Finally, the Court notes that the only circuit court to have squarely addressed the issue held that an involuntary termination would count as an adverse action, provided the plaintiff could prove the requisite elements of a constructive discharge. See Hill v. Borough of Kutztown, 455 F.3d 225, 233 n. 10 (3d Cir.2006) (“[A] resignation will be deemed involuntary (ie., deemed a constructive discharge) and will thus trigger the protections of the due process clause ... under only two circumstances: (1) when the employer forces the employee’s resignation or retirement by coercion or duress, or (2) when the employer obtains the resignation or retirement by deceiving or misrepresenting a material fact to the employee.”). This Court thus concludes that the mere fact that Jefferson resigned does not preclude his bringing a due-process claim. Because “resignations ... are presumed to be voluntary,” however, Aliotta, 614 F.3d at 566, he must also allege facts sufficient to establish that his resignation was, in fact, involuntary, and thus “effectively a termination.” Keyes, 372 F.3d at 438. It is" }, { "docid": "13126133", "title": "", "text": "REVIEW The City contends that the district court erred in both its factual findings and its application of the law to these findings to determine whether Hargray voluntarily resigned. This Circuit will not reverse a district court’s findings of fact in actions tried without a jury unless they are clearly erroneous. Barnes v. Lacy, 927 F.2d 539, 542 (11th Cir.1991); Fed.R.Civ.P. 52(a). “If the court’s findings are ‘plausible in light of the record viewed in its entirety,’ ” we must accept them. Barnes, 927 F.2d at 542 (quoting United States v. Fidelity Capital Corp., 920 F.2d 827, 836 n. 36 (11th Cir.1991)). In contrast, our review of the district court’s application of the law to the facts to determine whether Hargray’s resignation was involuntary is de novo. Barnes, 927 F.2d at 543. III. DISCUSSION The district court found, and the City does not dispute, that Hargray had a property interest in his continued employment with the City because he was covered by the City’s Civil Service rules which protected him from arbitrary dismissal. The only issue on appeal is whether the City deprived Har-gray of that interest without due process. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 537, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 574-576, 92 S.Ct. 2701, 2708-2709, 33 L.Ed.2d 548 (1972). “If he resigned of his own free will even though prompted to do so by events set in motion by his employer, he relinquished his property interest voluntarily and thus cannot establish that the [City] ‘deprived’ him of it within the meaning of the due process clause.” Stone v. University of Md. Medical Sys., Corp., 855 F.2d 167, 173 (4th Cir.1988). “If, on the other hand, [Hargrayjs resignation was so involuntary that it amounted to a constructive discharge, it must be considered a deprivation by [City] action triggering the protections of the due process clause.” Id. Our constitutional inquiry therefore must focus on the voluntariness of Hargray’s resignation. The answer to this question will dispose of the constitutional deprivation issue. The question of whether a" }, { "docid": "5398248", "title": "", "text": "at 132. 1. Plaintiff’s due process property interest. An employee’s resignation from public employment is presumed to be vol untary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir.1999). The Third Circuit in Leheny explained: This presumption remains intact until the employee presents evidence to establish that the resignation ... was involuntarily procured. If an employee retires [or resigns] of his own free will, even though 'prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights. Id. (emphasis added) (internal citations omitted). An employee’s resignation will be considered involuntary if: (1) the employer forces the resignation by using coercion or duress, or (2) the employee resigned because the employer deceived or misrepresented a material fact to the employee. Id. (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995)). To determine whether the resignation is involuntary, the court must look at all the circumstances surrounding plaintiffs resignation. Here, plaintiff has made no recognizable allegation and has introduced no evidence that the County defendants deceived or misrepresented a material fact to him. Rather, plaintiff claims that the conduct of defendants Brackbill and Billota at the meeting where they requested his resignation amounted to coercion or duress. In determining whether a resignation tion was involuntary due to coercion or duress, the court may consider the following factors: (1) whether the employee was presented with an alternative to resignar tion; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee had a reasonable time to choose; (4) whether the employee was permitted to select the effective date of resignation; and (5) whether the employee had the advice of counsel. Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995). Plaintiffs own deposition testimony conclusively shows that none of these factors, when considered, weighs in his favor. In the instant case, plaintiff-a lawyer both then and at the present time-was not put to a" }, { "docid": "22866189", "title": "", "text": "reassignment letter, the gag order, and the banishment order were implemented without affording him procedural due process. The first step in determining whether procedural due process has been denied is to ask “whether there exists a liberty interest or property interest which has been interfered with” by the defendants. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). If the court determines that there has been such a deprivation, the remaining question is what process is due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). a. Liberty or property interest The district court in the instant case correctly stated that First Amendment rights may constitute a liberty interest under the Due Process Clause. See Adkins v. Board of Educ. of Magoffin County, Ky., 982 F.2d 952, 955 (6th Cir.1993) (“Although [the plaintiff] had no property right to continued employment she had a liberty interest in not being denied employment for exercising her First Amendment right[s].... ”). Because we find that Jackson has stated a claim for a violation of his First Amendment right of freedom of speech with respect to the gag order, we hold that he has sufficiently alleged the deprivation of a liberty interest. Jackson also argues that he has pled a constitutionally protected property interest with respect to his alleged suspension. He argues that his membership in the classified civil service gives rise to a property interest in his continued employment. In support of this claim, he cites Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), which held that public employees have a property interest in continued employment, The holding in Loudermill, however, only extended to the termination of public employees. Indeed, the Supreme Court stated in Loudermill that the suspension of a tenured public employee with pay would avoid due process problems entirely. See Loudermill, 470 U.S. at 544-55, 105 S.Ct. 1487; see also Gilbert v. Homar, 520 U.S. 924, 929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (expressly acknowledging" }, { "docid": "650302", "title": "", "text": "We held that, because “a reasonable person in [his] position would feel he had no choice but to retire,” Kalvinskas’s retirement was involuntary for purposes of ADEA’s prohibition of retirement plans that require or permit involuntary retirement. Id. at 1308. We deemed Kalvinskas’s choice to be involuntary not because of discriminatory or intolerable working conditions, but rather, because of the coercion inherent in the choice between retirement and a complete deprivation of income: Id.; see also Lojek v. Thomas, 716 F.2d 675, 683 (9th Cir.1983) (suggesting an employee coerced into resigning could demonstrate he left his employment involuntarily). Our conclusion in Kalvinskas that an employee’s reasonable decision to retire can amount to an involuntary retirement under some circumstances, and our willingness to consider employment claims based on a theory of coercion, is consistent with rulings in our sister circuits. The Third, Fourth, Eighth, Tenth and Eleventh Circuits have adopted a “duress or coercion” theory under which “a resignation may be found involuntary if, from the totality of the circumstances, it appears that the employer’s conduct in requesting or obtaining the resignation effectively deprived the employee of free choice in the matter.” Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir.1992) (internal quotation marks omitted); see also Leheny v. City of Pittsburgh, 183 F.3d 220, 227-28 (3rd Cir.1999); Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir.1995) (per curiam); Parker v. Bd. of Regents, 981 F.2d 1159, 1162 (10th Cir.1992); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir.1988); cf. Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (noting that the constructive discharge concept was originally developed by the National Labor Relations Board to address situations in which employers coerced employees to resign). Accordingly, the district court’s ruling that Knappenberger could not establish he was deprived of a liberty or property interest because he did not allege he retired after facing “intolerable and discriminatory working conditions” was too limited; a retirement or resignation may be involuntary and constitute a deprivation of property for purposes" }, { "docid": "20155676", "title": "", "text": "that?” Neg-ley responded “I guess it could be summarized that way.” (D.I. 19A at A-90). In fact, throughout defendants’ briefs, they characterize plaintiffs’ acts as a case of the blue flu, and not as actual voluntary resignations. While unauthorized absences, insubordination, or the blue flu may provide strong grounds for termination, they are not equivalent to voluntary resignations from a job. Moreover, even if plaintiffs did indeed breach their employment contracts, this would not warrant summary judgment for defendants on a claim for procedural due process. Plaintiffs’ complaint does not assert a claim for breach of their employment contracts, and the fact that an employee may deserve to be fired because he or she failed to perform certain assigned duties does not mean that due process may be circumvented. In arguing that their actions were justified, defendants contend that Negley and Clower needed to act quickly because the police officers’ absences occurred during the very busy Fourth of July weekend. They also strongly hint that plaintiffs’ actions stemmed from their refusal, to recognize the authority of a female Acting Chief of Police. Yet, defendants did not act until July 8th, when the weekend had already ended. More importantly, however reprehensible plaintiffs’ conduct may have been, so long as plaintiffs did not voluntarily resign, they are entitled to procedural due process before being terminated. Under the Due Process Clause of the Fourteenth Amendment, if plaintiffs possess property rights or liberty interests in their continued public employment, then they are entitled to due process before the government may deprive them of their jobs. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Property interests are not created by the Constitution, but by external sources such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). They exist when a person has not just a unilateral expectation, but a legitimate claim of entitlement to the government benefit. Id. To constitute a property interest, there must be “rules or mutually explicit understandings that support [the]" }, { "docid": "19270946", "title": "", "text": "the November 13 resignation agreement. Therefore, he cannot allege a constitutional deprivation of property without due process. The individual Defendants are entitled to qualified immunity on this claim. B. Whether the individual Defendants are entitled to qualified immunity on Kirkland’s claim that the Defendants deprived him of a property interest without due process when the Board suspended him without pay. Kirkland alleges that the individual Defendants deprived him of procedural due process when, on November 16, 2002, they suspended him without pay. Defendants concede that Kirkland possessed a property interest in his one-year employment contract, running from July 1, 2002 through June 30, 2003. For purposes of this appeal, we assume, without deciding, that a government employee’s suspension without pay amounts to a deprivation triggering some degree of due process protections. Similarly, in Gilbert v. Homar, the Supreme Court assumed, without deciding, that a government entity’s suspension, without pay, of a public employee, who has a protected property interest in his continued employment, amounts to a property deprivation sufficient to implicate due process protections. See 520 U.S. 924, 929, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997) (noting “we have not had occasion to decide whether the protections of the Due Process Clause extend to discipline of tenured public employees short of termination”). The question presented, then, is what process Kirkland was due. See Brown, 399 F.3d at 1255. While “state law determines whether a person has a property right,” “it is purely a matter of federal constitutional law whether the procedure afforded was adequate.” Hulen, 322 F.3d at 1247. Kirkland asserts that the District should have afforded him both pre-and post-suspension due process. 1. Whether Kirkland was entitled to procedural due process before the District suspended him without pay. “[T]he root requirement of the Due Process Clause [is] that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quotation omitted). Nonetheless, “[t]here are ... some situations in which a postdeprivation hearing will satisfy due" }, { "docid": "13126134", "title": "", "text": "issue on appeal is whether the City deprived Har-gray of that interest without due process. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 537, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 574-576, 92 S.Ct. 2701, 2708-2709, 33 L.Ed.2d 548 (1972). “If he resigned of his own free will even though prompted to do so by events set in motion by his employer, he relinquished his property interest voluntarily and thus cannot establish that the [City] ‘deprived’ him of it within the meaning of the due process clause.” Stone v. University of Md. Medical Sys., Corp., 855 F.2d 167, 173 (4th Cir.1988). “If, on the other hand, [Hargrayjs resignation was so involuntary that it amounted to a constructive discharge, it must be considered a deprivation by [City] action triggering the protections of the due process clause.” Id. Our constitutional inquiry therefore must focus on the voluntariness of Hargray’s resignation. The answer to this question will dispose of the constitutional deprivation issue. The question of whether a resignation from public employment that has been requested by an employer is sufficiently invol untary to trigger the protections of the due process clause is one of first impression in this Circuit. As an initial matter, employee resignations are presumed to be voluntary. Angarita v. St. Louis County, 981 F.2d 1537, 1544 (8th Cir.1992); Alvarado v. Picur, 859 F.2d 448, 453 (7th Cir.1988); Christie v. United States, 518 F.2d 584, 587, 207 Ct.Cl. 333 (1975). “This presumption will prevail unless [the employee] comes forward with sufficient evidence to establish that the resignation was involuntarily extracted.” Christie, 518 F.2d at 587. Those circuits that have addressed whether a resignation was involuntary agree that the court must examine the surrounding circumstances to test the ability of the employee to exercise free choice. See Angarita, 981 F.2d at 1544; Parker v. Board of Regents, 981 F.2d 1159, 1162 (10th Cir.1992); Alvarado, 859 F.2d at 453-54; Stone, 855 F.2d at 173; Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983); Christie, 518 F.2d at 587. The" }, { "docid": "22936249", "title": "", "text": "“deprived” of that protected interest by some form of “state action,” see Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Unless there has been a “deprivation” by “state action,” the question of what process is required and whether any provided could be adequate in the particular factual context is irrelevant, for the constitutional right to “due process” is simply not implicated. In this case, there is no question that Stone had a constitutionally protected “property” interest in his continued employment with both the Hospital and the Medical School, as he could be discharged from each position only for cause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985). But that leaves the more difficult question whether he was “deprived” of that interest by some form of state action. Had he been officially discharged from his public employment, the answer would be evident. But Stone’s superiors never officially “fired” him—he resigned. If he resigned of his own free will even though prompted to do so by events set in motion by his employer, he relinquished his property interest voluntarily and thus cannot establish that the state “deprived” him of it within the meaning of the due process clause. Cf. Martinez v. California, 444 U.S. 277, 281, 100 S.Ct. 553, 557, 62 L.Ed.2d 481 (1980) (the mere fact that state action sets in motion a chain of events that ultimately leads to loss of a plaintiffs protected interest does not of itself establish that there has been a “deprivation by state action” in the constitutional sense). If, on the other hand, Stone’s “resignation” was so involuntary that it amounted to a constructive discharge, it must be considered a deprivation by state action triggering the protections of. the due process clause. A public employer obviously cannot avoid its constitutional obligation to provide due process by the simple expedient of forcing involuntary “resignations.” The proper focus of the constitutional inquiry here is therefore on the voluntariness of Stone’s resignation. The answer to that factual inquiry is dispositive of the" }, { "docid": "22936248", "title": "", "text": "protected property interest by the defendants’ conduct leading to his resignation. If he was not so deprived, that ends the matter; the other issues become irrelevant, without regard to their merits, as to which we therefore need express no view. Stone’s basic § 1983 claim of course is that he was deprived of his property interest in continued employment by defendants acting under color of state law, hence by state action, without due process of law, in violation of rights secured by the fourteenth amendment. On this appeal he claims the protections of both the substantive and procedural components of the due process clause, and the defendants have argued the issue in those terms. The critical point, however, is that in order to claim entitlement to the protections of the due process clause — either substantive or procedural — a plaintiff must first show that he has a constitutionally protected “liberty” or “property” interest, see Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and that he has been “deprived” of that protected interest by some form of “state action,” see Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Unless there has been a “deprivation” by “state action,” the question of what process is required and whether any provided could be adequate in the particular factual context is irrelevant, for the constitutional right to “due process” is simply not implicated. In this case, there is no question that Stone had a constitutionally protected “property” interest in his continued employment with both the Hospital and the Medical School, as he could be discharged from each position only for cause. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985). But that leaves the more difficult question whether he was “deprived” of that interest by some form of state action. Had he been officially discharged from his public employment, the answer would be evident. But Stone’s superiors never officially “fired” him—he resigned. If he resigned of his own free will even though" } ]

[ { "docid": "22066764", "title": "", "text": "is whether this case involved an attempt “to wear the accused out by a multitude of cases with accumulated trials.” Palko v. Connecticut, supra, at 328. We do not think that the Fourteenth Amendment always forbids States to prosecute different offenses at consecutive trials even though they arise out of the same occurrence. The question in any given case is whether such a course has led to fundamental unfairness. Of course, it may very well be preferable practice for a State in circumstances such as these normally to try the several offenses in a single prosecution, and recent studies of the American Law Institute have led to such a proposal. See Model Penal Code § 1.08 (2) (Tent. Draft. No. 5, 1956). But it would be an entirely different matter for us to hold that the Fourteenth Amendment always prevents a State from allowing different offenses arising out of the same act or transaction to be prosecuted separately, as New Jersey has done. For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice. See Hurtado v. California, 110 U. S. 516; Maxwell v. Dow, 176 U. S. 581; West v. Louisiana, 194 U. S. 258; Twining v. New Jersey, 211 U. S. 78. In the last analysis, a determination whether an impermissible use of multiple trials has taken place cannot be based on any over-all formula. Here, as elsewhere, “The pattern of due process is picked out in the facts and circumstances of each case.” Brock v. North Carolina, 344 U. S. 424, 427-428. And thus, without speculating as to hypothetical situations in which the Fourteenth Amendment might prohibit consecutive prosecutions of multiple offenses, we reach the conclusion that the petitioner in this case was not deprived of due process. “Rule 2:4-15 Joinder of Offenses [now Revised Rule 3:4-7]: “Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged, whether high misdemeanors or misdemeanors or" } ]

[ { "docid": "23111000", "title": "", "text": "charged in count one, were acquitted of assault, charged in count two, and were convicted of burglary, charged in count three. Each was sentenced to five years’ imprisonment on each conviction, the sentences to be consecutive to each other and consecutive to any terms of imprisonment which the prisoner were then serving. Both appellant and Hubbard appealed their convictions. As stated above, Hubbard has dismissed his appeal. The appellant has prosecuted his appeal in pro. per. The district court offered to appoint counsel for him for his appeal, but he declined the offer, and has written and submitted his own brief. Appellant, after his recapture on November 13, 1965, was not taken before a United States Commissioner “without unnecessary delay,” or, indeed, at all. He was indicted on March 9, 1966, nearly four months after his recapture. In the meantime he was interrogated by officials of the prison. He urges that failure of his custodians to take him before a Commissioner was a violation of Rule 5(a) of the Federal Rules of Criminal Procedure, and we will assume that it 'was, even under the unusual circumstances of the appellant’s situation. He urges that the doctrine laid down by the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), is applicable in his case. He does not make clear what advantage he thinks he should have because of the violation of Rule 5(a). All that McNabb, and Mallory, decided was that confessions or admissions obtained from a prisoner during a period of unnecessary delay could not be used as evidence against him at his trial. In the instant case no such evidence was obtained by the government. The McNabb-Mallory doctrine has no application. Nor, for the same reason, can the appellant obtain any advantage from the Supreme Court’s decisions in Esco bedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602,16" }, { "docid": "22963100", "title": "", "text": "right to counsel and that anything they said could be used against them. It appears that it was not until April 4 that the two were informed of their rights. It should be noted further that Bisig-nano rested on the transcript of the state court trial at his federal habeas corpus hearing. Russo offered some additional evidence in the way of new evidence in addition to his reliance on the state trial transcript. I. Illegal Detention Russo and Bisignano assert that any confession made during an illegal detention is inadmissible at trial. There is no doubt that the detentions were illegal under New Jersey law, see note 1, supra, and that the Newark police force disregarded the rights secured to an arrested person under the law of New Jersey. The petitioners-appellants press the point that the circumstances under which their confessions were obtained transgressed the rights secured to them by the Fourteenth Amendment and therefore were inadmissible in evidence. While it is the rule in federal prosecutions that confessions obtained in these circumstances must be suppressed, Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), this exclusionary rule is a function of the supervisory power of the federal courts over federal prosecutions and does not rise to the dignity of a constitutional prohibition. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Stroble v. State of California, 343 U.S. 181, 197, 72 S.Ct. 599, 96 L.Ed. 872 (1952); Gallegos v. State of Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951). It follows that this defense asserted by the appellants must fall. II. Physical Coercion Both Russo and Bisignano testified that the confessions were the product of physical beatings and punishment, accompanied by threats of more physical harm. Russo also testified that while at the hospital he was subjected to physical punishment and torturous treatment by the police. Bisignano testified that the police threatened to arrest his wife if he did not confess. The evidence" }, { "docid": "4389952", "title": "", "text": "This Court has often recognized that it is of the ‘very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.’ Hoag v. New Jersey, 356 U.S. 464, 468 [78 S.Ct. 829, 833, 2 L.Ed.2d 913], See Maxwell v. Dow, 176 U.S. 581 [20 S.Ct. 448, 44 L.Ed. 597]; Twining v. New Jersey, 211 U.S. 78 [29 S.Ct. 14, 53 L.Ed. 97], The broad rule sought here and in Crook-er would require us to apply the Fourteenth Amendment in a manner which would be foreign both to the spirit in which it was conceived and the way in which it has been implemented by this Court.” For the reasons herein set forth, we find no error in the proceedings and entry of the order of the district court on November 23, 1960 dismissing the petition for a writ of habeas corpus herein and we hereby affirm said order as the final judgment of said court in said cause. Affirmed. . This jargon may have some meaning to those possessing expertise in jail circles. We do not pursue it. . As stated in relator’s brief, he urges: (a) the appellant was held incommunicado ; (b) his arraignment was delayed in violation of the laws of Illinois; (c) his lawyer’s counsel was circumvented; (d) he was ill when he was arrested without a warrant in the middle of the night and had been running a high fever; (e) he was kept without food during his long detention until after he confessed." }, { "docid": "11375717", "title": "", "text": "coercion. The accused’s general conduct and emotional reactions, as well as the conditions under which the statements were obtained, were fully developed at the trial. There is substantial evidence to support the law officer’s ruling that the statements were admissible because they were made without coercion or improper influence of any kind and after full advice to the accused of his rights under Article 31. -K *• -X'” In the district court the petitioner testified that prior to making his recorded statement he was subjected to long periods of questioning and other abuses by military investigators prior to being advised of his rights, and before any charges were filed against him. It is contended that these facts bring the case within the rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and the recent case of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The rule of these cases is not applicable here for the reason stated in Burns v. Wilson, where it was said in footnote 12: “We reject petitioners’ contentions that the rule of McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, renders the confessions inadmissible and requires the civil courts to hold that the courts-martial were void. The Mc-Nabb rule is a rule of evidence in the federal civil courts; its source is not ‘due process of law’, but this Court’s power of ‘supervision of the administration of criminal justice in the federal courts.’ See 318 U.S. at page 340, 63 S.Ct. at page 613; cf. Gallegos v. State of Nebraska, 1951, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86. And we have of course no such supervisory power over the admissibility of evidence in courts-martial.” There is no merit to the contention that the effect of playing the tape recorded confession, together with the comments of the trial counsel, amounted to the petitioner being required to be a witness against himself, in violation of the Fifth Amendment. The recording device was only a method of perpetuating the statement." }, { "docid": "4389950", "title": "", "text": "He cites Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L.Ed.2d 760; Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948; Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037. In Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, a conviction for murder was affirmed, although certiorari had been granted by the Supreme Court because of the serious due process implications that attend state denial of a request to employ an attorney. Our comparison of the facts in Crooker with those in the case at bar convinces us that relator’s constitutional rights were not violated'in this respect. Moreover, it was pointed out, 357 U.S. at page 437, 78 S.Ct. at page 1290, in Crooker that there was there involved a failure of state authorities to comply with local statutes requiring that an accused promptly be brought before a magistrate. The court held that this bare fact does not render involuntary a confession by the one so detained, citing Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Crooker was followed by Cicenia v. Lagay, 357 U.S. 504, at page 509, 78 S.Ct. 1297, at page 1300, 2 L.Ed.2d 1523, where the court said: “In contrast, petitioner would have us hold that any state denial of a defendant’s request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra [318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819]; Mallory v. United States, 354 U.S. 449 [77 S.Ct. 1356, 1 L.Ed.2d 1479]. Still less should we impose this standard on each of the 48 States as a matter of constitutional compulsion. It is well known that law-enforcement problems vary widely from State to State, as well as among different communities within the same State." }, { "docid": "4347147", "title": "", "text": "in Miranda, as appears from the following portion of the opinion in that case, which the Frazier and Pettyjohn opinions seem to have overlooked : Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and this Court’s effectuation of that Rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner “without unnecessary delay” and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, 63 S.Ct. 608, 614, and in Mallory, 354 U.S., at 455-456, 77 S.Ct. 1356, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself. 384 U.S. at 463, 86 S.Ct. at 1622. It hardly need be added that none of the Miranda warnings given in the present case advised appellant of his right to be taken without unnecessary delay before a magistrate. Not only was that right not waived, but a Miranda waiver, applicable to state prosecutions, leaves intact the application in federal cases of Rule 5(a) and the decisions effectuating its provisions. V It seems quite clear that the confessions, obtained in the course of a violation of Rule 5(a), would therefore be inadmissible for that reason alone under the Mallory rule but for the erroneous waiver ruling of this court above discussed, unless the enactment subsequent to Miranda of 18 U.S.C. § 3501 now precludes application of the Mallory rule. Section 3501 became effective June 19, 1968, two days before Adams was decided. The Adams court, however, did not consider section 3501, although it was mentioned without elaboration in the Government’s petition for rehearing, which was' denied without opinion" }, { "docid": "4347146", "title": "", "text": "evidence. This is so whether that unlawfulness is attributed to no probable cause for arrest for the other crime or to violation of Rule 5(a). We cannot escape the duty of insisting that in the administration of criminal justice evidence be obtained by lawful means. It may be contended now, however, with reference to Judge Burger’s concurring opinion in Adams, that the detention of the appellant had not become unlawful under Rule 5(a), although in Adams Judge Burger held a similar detention was unlawful. This contention would rest upon the views expressed by this court subsequent to Adams that a Miranda waiver is a waiver also of the obligation of the arresting authorities to comply with Rule 5(a). The opinions of this court in Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969), and Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), are to that effect. I respectfully urge that this is a mistaken position, and should be reconsidered, for it is inconsistent with the position of the Supreme Court in Miranda, as appears from the following portion of the opinion in that case, which the Frazier and Pettyjohn opinions seem to have overlooked : Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and this Court’s effectuation of that Rule in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner “without unnecessary delay” and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, 63 S.Ct. 608, 614, and in Mallory, 354 U.S., at 455-456, 77 S.Ct. 1356, we recognized both the dangers of interrogation and the appropriateness of prophylaxis" }, { "docid": "11947080", "title": "", "text": "of confessions in federal court. See City of Boerne, 117 S.Ct. at 2172. If it is not required by the Constitution, then Congress possesses the authority to supersede Miranda legislatively, and § 3501 controls the admissibility of confessions in federal court. See Palermo, 360 U.S. at 353 n. 11, 79 S.Ct. 1217. Using the same analysis, several federal courts have found that § 3501 superseded the rule set forth in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). See United States v. Pugh, 25 F.3d 669, 675 (8th Cir.1994) (holding that § 3501 superseded the McNabb/Mallory rule); United States v. Christopher, 956 F.2d 536, 538-39 (6th Cir.1991) (noting that § 3501, rather than McNabb/Mallory, governs the admissibility of confessions in federal court). In particular, the Eighth and Sixth Circuits first ascertained whether the rule set forth by the Supreme Court in McNabb and Mallory was required by the Constitution. See Pugh, 25 F.3d at 675; Christopher, 956 F.2d at 538-39. In McNabb, the Supreme Court exercised its supervisory power over the federal courts to exclude all incriminating statements, including voluntary confessions, obtained during an unreasonable delay between a defendant’s arrest and initial appearance. See 318 U.S. at 343-44, 63 S.Ct. 608. In Mallory the Supreme Court affirmed the holding of McNabb under Rule 5(a) of the Federal Rules of Criminal Procedure. See 354 U.S. at 455-56, 77 S.Ct. 1356. Finding that the rule set forth in McNabb and Mallory was not required by the Constitution, the Eighth and Sixth Circuits had little difficulty concluding that Congress possessed the legislative authority to overrule both cases. See Pugh, 25 F.3d at 675; Christopher, 956 F.2d at 538-39. We begin our analysis then, with the Supreme Court’s decision in Miranda. Several passages in Chief Justice Warren’s opinion for the Court suggest that the warnings safeguard rights guaranteed by the Constitution. See, e.g., Miranda, 384 U.S. at 490, 86 S.Ct. 1602 (noting that the privilege against self-incrimination is guaranteed by the Constitution). Surprisingly," }, { "docid": "23410094", "title": "", "text": "accused of murder the privilege of consulting his counsel while being questioned by State Police between arrest and arraignment did not of itself violate federal due process. It is interesting to note that in the case just cited this Court’s ruling to the same effect was affirmed. In Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) it was held that putting the accused on the stand as a witness for the State did not violate federal due process; in Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L. Ed. 597 (1900) a provision in the Utah Constitution for a jury of eight jurors in all state criminal prosecutions, for other than capital offenses, was held beyond the reach of federal due process; in Hurtado v. People of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) it was held that federal due process does not require an indictment by a Grand Jury in a prosecution by a State-for murder. Well over half a century ago, the Supreme Court, in Rogers v. Peck, 199 U. S. 425, pp. 433-434, 26 S.Ct. 87, p. 89, 50 L.Ed. 256 (1905) in discussing the-sweep of the federal writ of habeas corpus said: “The extent of the right of the Federal courts to interfere by the writ of habeas corpus with the proceedings of courts and other authorities of a State is carefully defined by statute. When a prisoner is in jail he may be released upon habeas corpus when held in violation of his constitutional rights. * «■ * “The reluctance with which this court will sanction Federal interference with a State in the administration of its domestic law for the prosecution of crime has been frequently stated in the deliverances of the court upon the subject. It is only where fundamental rights, specially secured by the Federal Constitution, are invaded, that such interference is warranted.” (emphasis supplied) In Snyder v. Mass., 291 U.S. 97, p. 105, 54 S.Ct. 330, p. 332, 78 L.Ed. 674 (1934) Mr. Justice Cardozo, speaking for the Supreme Court," }, { "docid": "15246091", "title": "", "text": "an appeal from the judgment denying relief on December 14, 1965. . Pursuant to 28 U.S.C. § 2241(a), (c) (3), 2242 et seq. . Appellant concedes that under the non-retroactive rule of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the principles of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) have no application. Under the Johnson rule, Escobedo affects only those cases in which the trial began after June 22, 1964; Miranda, those trials which began after June 13, 1966. . In its order and opinion dismissing the petition, the District Court observed that: “If an incriminating statement such as was introduced here bearing upon flight from the scene of a crime was offered in a trial subsequent to June 22, 1964, the date of decision in Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758] (1964), resolution of the question presented would not be free of difficulty.” . See Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) and McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), both of which were exercises of the Supreme Court’s supervisory powers over the administration of the federal courts and not applicable to state prosecutions. . The Spano decision held that incriminating statements obtained through interrogation after indictment while the defendant was not represented by counsel were inadmissible because of the particular circumstances of the case. Four justices concurring were of the opinion that there was an absolute right to counsel after indictment and that statements obtained from a defendant without counsel were inadmissible at trial. . The application of Massiah to state prosecutions has since been recognized in the following state decisions: Commonwealth v. Coyle, 427 Pa. 72, 233 A.2d 542 (1967); Elliott v. Warden, 243 Md. 627, 222 A.2d 55 (1966) ; State v. Blanchard, 44 N.J. 195, 207 A.2d 681 (1965). See also 79 Harvard L. Rev. 935, 999 (1966). . The three" }, { "docid": "22372316", "title": "", "text": "S. 560, 567. In contrast, petitioner would have us hold that any state denial of a defendant’s request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra; Mallory v. United States, 354 U. S. 449. Still less should we impose this standard on each of the 48 States as a mat ter of constitutional compulsion. It is well known that law-enforcement problems vary widely from State to State, as well as among different communities within the same State. This Court has often recognized that it is of the “very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” Hoag v. New Jersey, 356 U. S. 464, 468. See Maxwell v. Dow, 176 U. S. 581; Twining v. New Jersey, 211 U. S. 78. The broad rule sought here and in Crooker would require us to apply the Fourteenth Amendment in a manner which would be foreign both to the spirit in which it was conceived and the way in which it has been implemented by this Court. Petitioner’s remaining constitutional contention can be disposed of briefly. He argues that he was deprived, of due process because New Jersey required him to plead to the indictment for murder without the opportunity to inspect his confession. The Fourteenth Amendment does not reach so far. As stated by the Supreme Court of New Jersey in the earlier proceedings in this case, 6 N. J. 296, at 299-301, 78 A. 2d 568, at 570-571, the rule in that State is that the trial judge has discretion whether or not to allow inspection before trial. This is consistent with the practice in many other jurisdictions. See, e. g., State v. Haas, 188 Md. 63, 51 A. 2d 647; People" }, { "docid": "23079619", "title": "", "text": "S.Ct. 1999, 29 L.Ed.2d 619 (1971) (Burger, C. J., dissenting); Wolf v. Colorado, 338 U.S. 25, 41, 69 S. Ct. 1359, 93 L.Ed. 1782 (1949) (Murphy, J., dissenting); People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 911 (1955) (Traynor, J.) (“other remedies have completely failed to secure compliance with the constitutional provisions”). But, putting aside the question of the effectiveness of an exclusionary rule as a deterrent to violations of the Fourth Amendment, we do not find present in this case at this time the same considerations which required an exclusionary rule in the Fourth Amendment cases or in other instances where an exclusionary rule has been fashioned and applied. First, the proscription in the Instruction against the use of Marines in ordinary civilian criminal law enforcement was until today far less clear and far less widely known than the prohibition of the Fourth Amendment against unreasonable searches or the rules of court requiring an accused to be produced before a magistrate within a designated period after apprehension. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Secondly, the Instruction expresses a policy that is for the benefit of the people as a whole, but not one that may fairly be characterized as expressly designed to protect the personal rights of defendants. Cf. United States v. Heffner, supra. Thirdly, the facts that the Instruction provides no mechanism for its own enforcement— and especially no criminal sanction for its violation — and that its legal effect was far from obvious, means that admission of the evidence of guilt does not require the court to condone “dirty business.” See McNabb v. United States, supra, 318 U.S. at 345-346, 63 S.Ct. 608; Eleuteri v. Richman, 26 N.J. 506, 512, 141 A.2d 46, 49 (1958) (Weintraub, C. J.); People v. Cahan, 44 Cal.2d 434, 445-456, 282 P.2d 905 (1955) (Traynor, J.). More important than any of the foregoing is the fact that this case is the first instance to our knowledge in" }, { "docid": "22372315", "title": "", "text": "inherent in the problem require no extensive elaboration. Cf. Watts v. Indiana, 338 U. S. 49, 57-62 (opinion of Jackson, J.). On the one hand, it is indisputable that the right to counsel in criminal cases has a high place in our scheme of procedural safeguards. On the other hand, it can hardly be denied that adoption of petitioner’s position would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases. A satisfactory formula for reconciling these competing concerns is not to be found in any broad pronouncement that one must yield to the other in all instances. Instead, as we point out in Crooker v. California, supra, this Court, in judging whether state prosecutions meet the requirements of due process, has sought to achieve a proper accommodation by considering a defendant’s lack of counsel one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness. See House v. Mayo, 324 U. S. 42, 45-46; Payne v. Arkansas, 356 U. S. 560, 567. In contrast, petitioner would have us hold that any state denial of a defendant’s request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra; Mallory v. United States, 354 U. S. 449. Still less should we impose this standard on each of the 48 States as a mat ter of constitutional compulsion. It is well known that law-enforcement problems vary widely from State to State, as well as among different communities within the same State. This Court has often recognized that it is of the “very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” Hoag v. New Jersey, 356 U. S. 464, 468. See Maxwell" }, { "docid": "21498169", "title": "", "text": "thereafter the subject of convenient recollection. So the typing of a voluntary confession is neither unnecessary or unreasonable. We think that in the present case it was proper procedure. We think the one hour and 20 minutes occupied by the various activities described here was not, under the circumstances, unreasonable and cannot properly be characterized as unnecessary. We are quite clear that there was no unnecessary delay in presenting Muschette to a committing magistrate within the meaning of Criminal Rule 5(a) as construed by the Mallory holding of the Supreme Court. Affirmed. . The Washington telephone directory is so large and heavy that a lethal blow could be struck with it. . Mallory v. United States, 854 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). . Heideman v. United States, 104 U.S.App.D.C. 128, 130, 259 F.2d 943, 945 (1958), cert. denied 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959). J. SKELLY WRIGHT, Circuit Judge (dissenting). In McNabb v. United States, 318 U.S. 332, 343-344, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943), the Supreme Court, in applying former 18 U.S.C. § 595, the predecessor statute to Rule 5(a), F.R.Crim.P., stated: “The purpose of this impressively pervasive requirement of criminal procedure is plain. * * * For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement. It outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection. A statute carrying such purposes is expressive of a general legislative policy to which courts should not be heedless when appropriate situations call for its application.” The McNabb opinion closed with the observation that “[t]he history of liberty has largely been the history of observance of procedural safeguards. And the effective administration of criminal justice hardly requires disregard of fair procedures imposed by law.” 318 U.S. at 347," }, { "docid": "12805115", "title": "", "text": "in denying the petition. The court’s rejection of petitioner’s involuntariness claim is supported by the record. And, his trial having antedated Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), those decisions are not controlling here. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Although the Wisconsin Supreme Court (30 Wis.2d 324, 140 N.W.2d 737) condemned as unreasonable the long period of detention of petitioner before he was charged, and then taken before a magistrate the following morning, it found that the delay did not make petitioner’s voluntary statement inadmissible or require his discharge on habeas corpus. Petitioner’s reliance upon the McNabb-Mallory rule is misplaced. That rule is not applicable here. It is based on court enforcement of the congressional mandate found in Rule 5(a) of the Federal Rules of Criminal Procedure. But this case involves a state, not a federal, conviction. And, the rule is not of constitutional dimensions. It does not reach to invalidate petitioner’s conviction as being constitutionally infirm. The judgment order of the District Court is affirmed. We wish to express our thanks to Mr. Thomas J. Schoenbaum of the Chicago Bar, court-appointed counsel on this appeal, for his able presentation on behalf of the petitioner. Affirmed. . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479." }, { "docid": "23410093", "title": "", "text": "is guaranteed by the due process clause of the Fourteenth Amendment”, and cited in support the teaching of the Supreme Court of the United States that “it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” The Due Process Issue: While this Court can overrule its prior holding in Price, it can not overrule, nor can it reject, the teaching of the Supreme Court to which we gave effect four years ago in that case. The case books abound with instances in which the Supreme Court has applied the principles stated in Price. A year ago, in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed. 156 (1961) it was held, for example, that exemption from compulsory self-incrimination is not safeguarded as against state action by the Fourteenth Amendment. In Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958) it was held that the refusal to permit one accused of murder the privilege of consulting his counsel while being questioned by State Police between arrest and arraignment did not of itself violate federal due process. It is interesting to note that in the case just cited this Court’s ruling to the same effect was affirmed. In Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908) it was held that putting the accused on the stand as a witness for the State did not violate federal due process; in Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L. Ed. 597 (1900) a provision in the Utah Constitution for a jury of eight jurors in all state criminal prosecutions, for other than capital offenses, was held beyond the reach of federal due process; in Hurtado v. People of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) it was held that federal due process does not require an indictment by a Grand Jury in a prosecution by a State-for murder. Well over half a century ago," }, { "docid": "22867203", "title": "", "text": "a severe blow to enforcement of law and the administration of criminal justice. On the other hand, were we to limit the retroactive effect of Gideon and Doughty to the period of time neces sarily comprehended in those cases, the states might still prosecute most of such defendants and bring them to trial if new pleas of guilty were not forthcoming. Fortunately, or not, the Supreme Court has chosen to act in cases where the criminal charges are relatively recent in point of time, much more so than in the cases before us. Gideon was tried in 1961 on charges that he had committed an offense earlier that same year. The state did in fact retry him, albeit unsuccessfully. The charge against Doughty was for rape allegedly committed in 1958, and his plea of guilty was entered in 1959. We do not know whether the Supreme Court thus meant to leave open the question of retrospective application to convictions prior to 1959. While we must now go as far as that Court went, so that other defendants who were unrepresented as were Gideon and Doughty are not denied the equal protection of those decisions, it seems to me that retrospective effect prior to 1959 is fraught with so many unfavorable consequences which far outweigh the little good which might possibly flow from such action that I would do no more than what the Supreme Court has already chosen to do in these two eases. We have been admonished many times that federal courts ought not to interfere with the administration of criminal justice by the states. Mr. Justice Harlan, writing for a majority of the Supreme Court, said in Hoag v. New Jersey, 356 U.S. 464 at 468, 78 S.Ct. 829 at 833, 2 L.Ed.2d 913 (1958): “For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” See also Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908). Surely any federal court of less" }, { "docid": "4389951", "title": "", "text": "U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246. Crooker was followed by Cicenia v. Lagay, 357 U.S. 504, at page 509, 78 S.Ct. 1297, at page 1300, 2 L.Ed.2d 1523, where the court said: “In contrast, petitioner would have us hold that any state denial of a defendant’s request to confer with counsel during police questioning violates due process, irrespective of the particular circumstances involved. Such a holding, in its ultimate reach, would mean that state police could not interrogate a suspect before giving him an opportunity to secure counsel. Even in federal prosecutions this Court has refrained from laying down any such inflexible rule. See McNabb v. United States, supra [318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819]; Mallory v. United States, 354 U.S. 449 [77 S.Ct. 1356, 1 L.Ed.2d 1479]. Still less should we impose this standard on each of the 48 States as a matter of constitutional compulsion. It is well known that law-enforcement problems vary widely from State to State, as well as among different communities within the same State. This Court has often recognized that it is of the ‘very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.’ Hoag v. New Jersey, 356 U.S. 464, 468 [78 S.Ct. 829, 833, 2 L.Ed.2d 913], See Maxwell v. Dow, 176 U.S. 581 [20 S.Ct. 448, 44 L.Ed. 597]; Twining v. New Jersey, 211 U.S. 78 [29 S.Ct. 14, 53 L.Ed. 97], The broad rule sought here and in Crook-er would require us to apply the Fourteenth Amendment in a manner which would be foreign both to the spirit in which it was conceived and the way in which it has been implemented by this Court.” For the reasons herein set forth, we find no error in the proceedings and entry of the order of the district court on November 23, 1960 dismissing the petition for a writ of habeas corpus herein and we hereby affirm said order as the final judgment of said court in said cause. Affirmed. . This jargon may" }, { "docid": "22867204", "title": "", "text": "other defendants who were unrepresented as were Gideon and Doughty are not denied the equal protection of those decisions, it seems to me that retrospective effect prior to 1959 is fraught with so many unfavorable consequences which far outweigh the little good which might possibly flow from such action that I would do no more than what the Supreme Court has already chosen to do in these two eases. We have been admonished many times that federal courts ought not to interfere with the administration of criminal justice by the states. Mr. Justice Harlan, writing for a majority of the Supreme Court, said in Hoag v. New Jersey, 356 U.S. 464 at 468, 78 S.Ct. 829 at 833, 2 L.Ed.2d 913 (1958): “For it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice.” See also Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908). Surely any federal court of less stature than the Supreme Court ought not go one step further than is necessary to carry out the plain and expressed mandate of that Court where to do so will certainly amount to a wholesale jail delivery from many state prisons in this country. At the very least it would seem that the Court has left open the question of how far it will go into the past to give retrospective effect to Gideon and Doughty. See Justice Harlan’s dissent in Pickelsimer v. Wainwright, 375 U.S. 2, 3, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963). And no one would doubt the power of the Court to say how far back into the past a newly made rule, even one declaring constitutional rights, must be applied. See Griffin v. Illinois, 351 U.S. 12, 25-26, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring); Bender, Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962) ; Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L. J. 319, 338-42;" }, { "docid": "21201686", "title": "", "text": "PER CURIAM. The j'udgment dismissing the application of Donald James Schnepp for a writ of habeas corpus to obtain his release from Oregon State Penitentiary is affirmed for the following reasons: 1. The warden of Oregon State Penitentiary was not named a respondent. See Goss v. State of Alaska, 9 Cir., 325 F.2d 1019; Bohm v. State of Alaska, 9 Cir., 320 F.2d 851. 2. According to allegations contained in the application, Schnepp now has a post conviction proceeding pending in the courts of Oregon, and therefore has not exhausted his presently-available state remedies, this being a condition precedent to the granting, by a federal court, of an application by a state prisoner for a writ of habeas corpus. See 28 U.S.C. § 2254. 3. The rule of McNabb v. United States, 318 U.S. 332, 333, 63 S.Ct. 608, 87 L.Ed. 819 and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, upon which appellant relies in asserting that, as a result of the manner and length of his detention, he was deprived of rights under the federal Constitution, has no application because: (a) those decisions and the rule they announce relate to Rule 5(a), Federal Rules of Criminal Procedure, and have no con stitutional connotation applicable in state court criminal proceedings. State v. Jordan, 83 Ariz. 248, 320 P.2d 446; (b) the constitutional test with regard to state prisoners is whether the detention and examination is coercive (Culombe v. Connecticut, 367 U.S. 568, 591, 81 S.Ct. 1860, 6 L.Ed.2d 1037) and there is here no allegation of coercive examination; and (c) it is not alleged that any incriminating statements were obtained as a result of the detention complained of, or that Schnepp’s determination to enter a plea of guilty was affected thereby." } ]

[ { "docid": "22123780", "title": "", "text": "MR. Justice Frankfurter delivered the opinion of the Court. This case presents for decision important questions regarding the applicability to the United States of the restrictions against stay of state court proceedings contained in 28 U. S. C. § 2283 and the propriety of the injunction decreed by the District Court and sustained by the Court of Appeals. Petitioner in 1953 had filed a peti-tory action in a Louisiana state court against respondent-mineral-lessees of the United States. In that action, a suit by one out of possession claiming title to, and possession of, immovables, petitioner sought to have itself declared owner of the mineral rights under land owned by the United States, and it also sought an accounting for oil and other minerals removed by respondent-lessees under their lease from the United States. Petitioner founded its claim on Louisiana Act No. 315 of 1940, La. Rev. Stat., 1950, § 9:5806, which, it alleged, made “impre-scriptible” a reservation of mineral rights.in a deed of December 21,1938, to the United States by its predecessor in title. Respondent-lessees filed exceptions in the state court proceedings, urging that under Louisiana law the lessor should be made a party and the lessees discharged from the suit, that this was essentially a suit against the United States, which had not consented to be sued, that the United States was an indispensable party, and that no cause of action had been stated. The state trial court found that a cause of action had been stated, and it overruled the exceptions. At this point the United States, joining petitioner and other interested parties as defendants, brought the present suit in the District Court for the Eastern District of Louisiana to quiet title to the mineral rights; it also sought a preliminary injunction to restrain petitioner from prosecuting its action in the state court. The United States based its claim of ownership on the provision in the 1938 deed from petitioner’s predecessor in title that the reservation of mineral rights would expire on April 1,1945, subject to certain conditions not material to this case. The United States claimed that" } ]

[ { "docid": "22143610", "title": "", "text": "“expectancy” revocable at any time by after-enacted legislation. Respondents place heavy reliance on the opinion of the Louisiana Supreme Court in Leiter Minerals, where that court held that a mineral reservation for an indefinite duration was one traditionally subject to retroactive prescriptive change. But even if this rule of law could have been anticipated in 1937 and 1939, when the United States agreed to the mineral reservations in issue here, that the 1937 and 1939 reservations were of “indefinite” duration could not have been. Indeed, some 20 years later, in 1957, when Leiter Minerals came to this Court for the first time, we were not in a position to resolve the Government's contention that the Leiter reservation was one of specific duration. Uncertainty over this question of Louisiana law was the guiding force behind our remand in hopes of obtaining the view of the Louisiana Supreme Court. In its advisory opinion, the Louisiana Supreme Court did not decide whether the Leiter-type reservation was “indefinite” and subject to retroactive modification — to the extent that the Federal District Court, in Louisiana, subsequently concluded that the servitude in the Leiter reservation was not, under state law, freely revocable. In Leiter Minerals, one Court of Appeals judge dissented on this state law issue, and, with reason, the Government renews the issue before the Court in this case. Were the terms of the mineral reservations at issue here less detailed and specific, it might be said that the Government acknowledged and intended to be bound by unforeseeable changes in state law. But the mineral reservations before us are flatly inconsistent with the respondents’ suggestion that the United States in fact expected that these reservations would be wholly subject to retroactive modification. Nor, given the absence of any reliable contemporaneous Louisiana signpost and the absence even today of any final resolution of the pertinent state law question, can we say that the United States ought to have anticipated that its deed contained an empty promise. Respondents’ reliance on the Louisiana Supreme Court’s holding in its opinion in 1961 in Leiter Minerals assumes that a late-crystallizing" }, { "docid": "22143590", "title": "", "text": "indicate that it was intended to have a retroactive application, but because of the general rule of law established by the jurisprudence of this court that laws of prescription and those limiting the time within which actions may be brought are retrospective in their operation.” 212 La. 949, 958, 33 So. 2d 693, 696 (1947). The court acknowledged the contention that if Act 315 were applied retroactively, it might be unconstitutional, but dismissed the constitutional issue without resolving it for failure to join the United States, a necessary party. Whitney Bank set the stage for the first federal court test of Act 315, as construed to have retroactive application, in United States v. Nebo Oil Co., supra, affg 90 F. Supp. 73 (WD La. 1950). There the United States brought suit against Nebo Oil (the successor to the 1932 mineral purchaser of the Whitney Bank case) to secure a declaratory judgment that the United States owned the acreage it purchased in 1936 subject only to the 10-year rule of prescription specified at the time of the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took “nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws .... [This] mere expectancy . . . cannot be regarded as a vested right protected by the Constitution.” 190 F. 2d, at 1008-1009. In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which in 1938 had sold a substantial tract in Plaquemines Parish, Louisiana, to the United States. Leiter’s federal sale was subject to a mineral reservation in Leiter’s favor, providing in essence that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a" }, { "docid": "21364711", "title": "", "text": "from the record. It does appear, however, that on October 18, 1935 the Executors and Trustees under the will of Joseph Leiter executed a grant of preliminary use and occupation “in order that the United States may immediately establish the Delta Migratory Waterfowl Refuge by Executive Order.” Under that permission, the United States entered into possession in 1936 and surveyed and mapped the area during the Winter of 1936-1937. It is thus doubtful whether the contract became legally binding prior to the passage of Act No. 151 of 1938. Upon the assumption, however, that it became binding on its date, March 14, 1935, we hold there is no constitutional obstacle to the application of the Louisiana statutes — Act No. 151 of 1938 or Act No. 315 of 1940. The judgment of the district court is therefore reversed and the cause remanded for further proceedings in accordance with this opinion. Reversed and remanded. . Opinion reported as United States v. Leiter Minerals, Inc., E.D.La.1954, 127 F.Supp. 439. . Leiter Minerals, Inc. v. United States, 5 Cir. 1955, 224 F.2d 381. . Leiter Minerals, Inc. v. California Co., 1960, 239 La. 116, 118 So.2d 124; Leiter Minerals, Inc. v. California Co., Ct.App. La. 4th Cir., 1961, 126 So.2d 76; Leiter Minerals, Inc. v. California Co., La. 1961, 241 La. 915, 132 So.2d 845. . United States v. Leiter Minerals, Inc., E.D.La.1962, 204 F.Supp. 560. . “§ 1652. State laws as rules of decision “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in eases where they apply.” 28 U.S.C.A. § 1652. . “Art. 821. Servitudes are also extinguished when they have been established for a certain time only, or under a condition that in a certain event they shall cease; for when the time expires, or the event takes place, the servitude becomes extinguished of right.” 3 LSA-C.C. Title 4. . “Art. 783. Servitudes are extinguished: «* * *" }, { "docid": "21364692", "title": "", "text": "be added that the state courts in such a proceeding can decide definitively only questions, of state law that are not subject to> overriding federal law. “We therefore modify the judgment of the Court of Appeals to permit an interpretation of the state' statute to be sought with every expedition in the state court in conformity with this opinion.” Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229, 230, 77 S.Ct. 287, 292, 293, 1 L.Ed.2d 267. The Louisiana courts rendered three published opinions, the last of which is presently of most importance. The Supreme Court of Louisiana summarized its advice to the federal courts as follows: “To summarize in conclusion, it is our view, and we hold: First, that if the reservation in the Leiter deed is ■construed as establishing a mineral ■servitude for a definite, fixed, and ■specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied ; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional extin-guishment of the mineral servitude ■created, then Act 315 of 1940 is applicable and constitutional. The interpretation of the contract is for the United States courts.” Leiter Minerals, Inc. v. California Co., La.1961, 241 La. 915, 132 So.2d 845, 854, 855. The federal district court then granted summary judgment in favor of the United States. This appeal is from that .judgment. The United States argues that the deed is explicit that under the admitted circumstances the right was “to expire” and “the right to mine shall terminate, and complete fee in the land become vested in the United States”; that such a contract is valid under federal law; and that the rights of the United States under the deed are governed by federal law, citing Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; United States v." }, { "docid": "3769343", "title": "", "text": "has ever existed over the Group A and B lands. We AFFIRM. . Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207, 245 (1920). . Id. . See Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So.2d 845, 851 (1961) (citing provisions of the Louisiana Civil Code and case law recognizing the 10-year prescriptive period). The Mineral Code now governs prescription of mineral servitudes and retains the 10-year prescriptive period. La.Rev.Stat. § 31:21. . See Leiter Minerals, 132 So.2d at 852 (\"If a servitude is established for 10 years or less, it will remain in force for the time so stipulated regardless of whether it is used by the servitude owner. In such a case no question of prescription arises....”). . 1940 La. Acts 315. . La.Rev.Stat. § 31:149. . Jurisdiction in the district court was based on 28 U.S.C. § 1346(f), which provides exclusive original jurisdiction to federal district courts for actions under 28 U.S.C. § 2409a to “quiet title to an estate or interest in real property in which an interest is' claimed by the United States.” 28 U.S.C. § 1346(f). . Judge Stewart concurs in the judgment' only. . 16 U.S.C. § 515. . The Louisiana Supreme Court has held that Act 315 should be applied retroactively. Whitney Nat. Bank v. Little Creek Oil Co., 212 La. 949, 33 So.2d 693, 696 (1947). . Starkman v. Evans, 198 F.3d 173, 174 (5th Cir.1999). . 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). . 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973). . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). . See, e.g., Little Lake, 412 U.S. at 591, 93 S.Ct. 2389 (\"The federal jurisdictional grant over suits brought by the United States is not in itself a mandate for applying federal law in all circumstances.\"). . 28 U.S.C. § 1652 (\"The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in" }, { "docid": "22143592", "title": "", "text": "defined period. At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate “and complete fee in the land becomes vested in the United States.” The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration. After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States sued in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Court, and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 229 (1957). Adhering to the terms of the remand, Leiter sought a declaratory judgment in the Louisiana courts, which expressed some continuing doubt over the breadth of their responsibility for resolving the Leiter controversy on its own facts. Ultimately, the Louisiana Supreme Court took jurisdiction of the case and rendered a declaratory judgment limited to general elucidation of Act 315, without applying the Act to the specific terms of the Leiter mineral reservation itself. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845 (1961). The Louisiana Supreme Court expressed its conclusions as follows: “First, that if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional ex-tinguishment of the mineral servitude created, then" }, { "docid": "22143595", "title": "", "text": "rights were to be governed by Louisiana law. The Court of Appeals believed that the Louisiana Supreme Court had viewed Leiter’s servitude as “one of indefinite duration” and it agreed with that view. Under Louisiana law, therefore, the reservation “provide [d] for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by [Act 315].” 329 F. 2d, at 93. As to the Government’s contention that the Act, as so construed, unconstitutionally impaired the obligation of contract, the Court of Appeals concluded that the dis cussion of that matter in its prior decision in TSFebo Oil, supra, and in the Louisiana Supreme Court’s Leiter opinion, made it “unnecessary further to labor” the point. Id., at 94. Judge Gewin dissented. On being advised by the parties that the case had been settled, we granted cer-tiorari, vacated the judgment of the Court of Appeals, and remanded the cause to the District Court with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). II The essential premise of the Court of Appeals’ decision in the Leiter Minerals case was that state law governs the interpretation of a federal land acquisition authorized by the Migratory Bird Conservation Act. The Court of Appeals did not set forth in detail the basis for this premise, but that court’s opinion seems to say that state law governs this land acquisition because, at bottom, it is an “ordinary” “local” land transaction to which the United States happens to be a party. The suggestion is that this Court’s decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), compels application of state law here because the Rules of Decisions Act, 28 U. S. C. § 1652, requires application of state law in the absence of an explicit congressional command to the contrary. We disagree. The federal jurisdictional grant over suits brought by the United States is not in itself a mandate for applying federal law in all circumstances. This principle follows from Erie itself, where, although the federal courts had jurisdiction over diversity cases, we held that the federal" }, { "docid": "22143594", "title": "", "text": "Act 315 of 1940 is applicable and constitutional.” Id., at 942, 132 So. 2d, at 854-855. Recognizing that “the interpretation of this reservation is for the United States courts, and not for us in this proceeding,” id., at 930, 132 So. 2d, at 850, that court nevertheless hinted broadly that it viewed the Leiter reservation as one establishing a reservation for an indefinite period of time, and thus one subject to retroactive application of Act 315. See id., at 936, 938, 132 So. 2d, at 852, 853. The parties then returned to federal court. The District Court held that the mineral reservation in the Leiter deed created a mineral servitude for a fixed period and that, under the terms of the Louisiana Supreme Court’s declaratory ruling, as a matter of state law the reservation was not affected by Act 315. 204 F. Supp. 560 (ED La. 1962). The Court of Appeals reversed. It rejected the Government’s contention that federal law controlled the rights of the United States under the reservation, and held, instead, that those rights were to be governed by Louisiana law. The Court of Appeals believed that the Louisiana Supreme Court had viewed Leiter’s servitude as “one of indefinite duration” and it agreed with that view. Under Louisiana law, therefore, the reservation “provide [d] for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by [Act 315].” 329 F. 2d, at 93. As to the Government’s contention that the Act, as so construed, unconstitutionally impaired the obligation of contract, the Court of Appeals concluded that the dis cussion of that matter in its prior decision in TSFebo Oil, supra, and in the Louisiana Supreme Court’s Leiter opinion, made it “unnecessary further to labor” the point. Id., at 94. Judge Gewin dissented. On being advised by the parties that the case had been settled, we granted cer-tiorari, vacated the judgment of the Court of Appeals, and remanded the cause to the District Court with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). II The essential premise of the Court" }, { "docid": "22143587", "title": "", "text": "the act of sale and judgment of condemnation, respectively. Thus, under the terms of these instruments, fee title in the United States ripened as of 1947 and 1949, respectively — 10 years from the dates of crea tion. In 1955, the United States issued oil and gas leases applicable to the lands in question. Respondents, however, continued to claim the mineral rights and accordingly entered various transactions purporting to dispose of those rights. Respondents relied upon Louisiana Act 315 of 1940, La. Rev. Stat. § 9:5806 A (Supp. 1973), which provides: “When land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies from any person, firm or corporation, and by the act of acquisition, order or judgment, oil, gas or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas or other minerals or royalties, still in force and effect, the rights so reserved or previously sold shall be imprescriptible.” Respondents contended that the 1940 enactment rendered inoperative the conditions set forth in 1937 and 1939 for the extinguishment of the reservations. The District Court concluded that the Court of Appeals’ prior decision in Leiter Minerals, Inc. v. United States, 329 F. 2d 85 (CA5 1964), required resolution of this case in favor of respondents, notwithstanding that we had vacated the Court of Appeals’ judgment in Leiter Minerals and remanded with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). The Court of Appeals affirmed, for the reasons stated in its Leiter Minerals holding. It rejected the Government’s Contract Clause and Supremacy Clause objections on the authority of United States v. Nebo Oil Co., 190 F. 2d 1003 (CA5 1951), and further rejected the Government’s argument that Act 315 was unconstitutionally discriminatory against the United States. The Court of Appeals observed “that the same principle applies to acquisitions by the State of Louisiana [La. Rev. Stat. § 9:5806 B], and that the act really" }, { "docid": "21364699", "title": "", "text": "and when the Legislature passed Act 315 a year and a half later, those mineral rights were still in effect. Likewise, at the time the Legislature passed the 1940 Act the govern ment’s rights to the minerals were just as contingent and uncertain as they were when Leiter executed the deed in 1938.” (132 So.2d at p. 859.) The State Court of Appeals took a ■diametrically opposite view, and “declared and decreed that Act 315 of 1940 (LSA-R.S. 9:5806) does not apply in this case since the mineral reservation is ■of specific ex contractu duration, less than the prevailing statutory period of ten years for non-user.” (126 So.2d .at 82.) Mr. Justice Hawthorne, speaking for the majority of the Supreme Court of Louisiana, thought that both the Louisiana district court and the Louisiana •Court of Appeals went too far, and that they should have confined their opinions -to an interpretation of the Louisiana statute: “As we view the matter, both the Louisiana district court and the Louisiana Court of Appeal went far beyond the directive of the United States Supreme Court, as our state ■courts were not asked to interpret or construe the reservation of the mineral rights in the deed to the United States.” (132 So.2d at p. 850.) It nonetheless seems clear that the majority of the Supreme Court of Louisiana held the opinion that when the entire reservation was read together and in context, Leiter’s servitude was one of indefinite duration. It disagreed flatly with the opinion of the Louisiana Court of Appeals and, continuing the paragraph of its opinion last quoted, said: “In this connection, however, we cannot help but observe that the Court of Appeal in reaching its conclusion did not consider the entire reservation but concentrated its whole attention on a single date in it. In this it was in error, for under Article 1955 of our Civil Code ‘All clauses of agreements are interpreted the one by the other, giving to each the sense that results from the entire act’. For this reason the decision of the Court of Appeal on this point" }, { "docid": "21364689", "title": "", "text": "any of its subdivisions, from any person, firm or corporation for use in any public work and/or improvement, and, by the act of acquisition, oil, gas and/or other minerals or royalties are reserved, prescription shall not run against such reservation of said oil, gas and/or other minerals or royalties.” That Act was repealed by Act 315 of 1940, LSA-R.S. 9:5806, which provides: “ * * * That when land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies, from any person, firm or corporation, and by the act of acquisition, verdict or judgment, oil, gas, and/or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas and/or other minerals or royalties, still in force and effect, said rights so reserved or previously sold shall be impre-scriptible.” The ownership of the mineral right depends upon whether the mineral reservation provided for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by the Louisiana statutes. The first suit was filed in a Louisiana state court on August 13, 1953 by Leiter, against California and Allen L. Lobrano. The United States then filed in the federal district court the present action to quiet title, asserting its right to the minerals. The district court granted a preliminary injunction enjoining Leiter from prosecuting the state court action. This Court affirmed. On certiorari, the Supreme Court modified the judgment of ■this Court to permit an interpretation of the Louisiana statute involved to be sought with every expedition in the Louisiana courts, saying: “The Government contends that Act No. 315 of 1940 does not apply when the parties themselves have contracted for a reservation of specific duration and that if the statute' is construed to apply to this situation, it would impair the obligation of the Government’s contract. Petitioner disagrees. The Supreme Court of Louisiana has never considered the specific issue or even discussed generally the rationale of'" }, { "docid": "22143611", "title": "", "text": "Federal District Court, in Louisiana, subsequently concluded that the servitude in the Leiter reservation was not, under state law, freely revocable. In Leiter Minerals, one Court of Appeals judge dissented on this state law issue, and, with reason, the Government renews the issue before the Court in this case. Were the terms of the mineral reservations at issue here less detailed and specific, it might be said that the Government acknowledged and intended to be bound by unforeseeable changes in state law. But the mineral reservations before us are flatly inconsistent with the respondents’ suggestion that the United States in fact expected that these reservations would be wholly subject to retroactive modification. Nor, given the absence of any reliable contemporaneous Louisiana signpost and the absence even today of any final resolution of the pertinent state law question, can we say that the United States ought to have anticipated that its deed contained an empty promise. Respondents’ reliance on the Louisiana Supreme Court’s holding in its opinion in 1961 in Leiter Minerals assumes that a late-crystallizing doctrine of state law is appropriately applied to modify the expectations of the United States established by the terms of 1937 and 1939 bargains. The argument, however, is indistinguishable from respondents’ defense of Act 315 itself. Years after the fact, state law may not redefine federal contract terminology “in a way entirely strange to those familiar with its ordinary usage . . . .” De Sylva v. Ballentine, 351 U. S., at 581. IY In speaking of the choice of law to be applied, the alternatives are plain although in this case identifying them in fixed categories is somewhat elusive. One “choice” would be to apply the law urged on us by respondents, i. e., Louisiana Act 315 of 1940. In some circumstances, such as those suggested by RFC v. Beaver County, 328 U. S. 204 (1946), or Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966), state law may be found an acceptable choice, possibly even when the United States itself is a contracting party. However, in a setting in which the" }, { "docid": "22143588", "title": "", "text": "so reserved or previously sold shall be imprescriptible.” Respondents contended that the 1940 enactment rendered inoperative the conditions set forth in 1937 and 1939 for the extinguishment of the reservations. The District Court concluded that the Court of Appeals’ prior decision in Leiter Minerals, Inc. v. United States, 329 F. 2d 85 (CA5 1964), required resolution of this case in favor of respondents, notwithstanding that we had vacated the Court of Appeals’ judgment in Leiter Minerals and remanded with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). The Court of Appeals affirmed, for the reasons stated in its Leiter Minerals holding. It rejected the Government’s Contract Clause and Supremacy Clause objections on the authority of United States v. Nebo Oil Co., 190 F. 2d 1003 (CA5 1951), and further rejected the Government’s argument that Act 315 was unconstitutionally discriminatory against the United States. The Court of Appeals observed “that the same principle applies to acquisitions by the State of Louisiana [La. Rev. Stat. § 9:5806 B], and that the act really does nothing more than place citizens of Louisiana in the same position as citizens of other states whose land has been purchased or condemned by the United States.” 453 F. 2d 360, 362 (1971). We reverse. I Litigation involving Act 315 began more than a quarter century ago. The Leiter Minerals case, upon which the Court of Appeals based its decision in this case, is only the principal holding in the area. The first case to arise involving Act 315, Whitney Nat. Bank v. Little Creek Oil Co., grew out of a 1932 sale of mineral rights that specified a 10-year period of prescription. The surface property was conveyed to the United States in 1936, subject to the 1932 mineral sale, and in 1947 the question arose whether Act 315 of 1940 had the effect of extending indefinitely the servitude created by the 1932 sale. The Louisiana Supreme Court held that Act 315 of 1940 was fully applicable to the 1936 transaction — “not because there is anything in the terms of the statute to" }, { "docid": "21364712", "title": "", "text": "Cir. 1955, 224 F.2d 381. . Leiter Minerals, Inc. v. California Co., 1960, 239 La. 116, 118 So.2d 124; Leiter Minerals, Inc. v. California Co., Ct.App. La. 4th Cir., 1961, 126 So.2d 76; Leiter Minerals, Inc. v. California Co., La. 1961, 241 La. 915, 132 So.2d 845. . United States v. Leiter Minerals, Inc., E.D.La.1962, 204 F.Supp. 560. . “§ 1652. State laws as rules of decision “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in eases where they apply.” 28 U.S.C.A. § 1652. . “Art. 821. Servitudes are also extinguished when they have been established for a certain time only, or under a condition that in a certain event they shall cease; for when the time expires, or the event takes place, the servitude becomes extinguished of right.” 3 LSA-C.C. Title 4. . “Art. 783. Servitudes are extinguished: «* * * “6. By the expiration of the time for which the servitude was granted, or by the happening of the dissolving condition attached to the servitude.” 3 LSA-C.C. Title 4. . Art. 2049 of LSA-Civil Code. GEWIN, Circuit Judge (dissenting). After carefully considering the brilliant, clear and well-written opinion of the majority, I find myself more in agreement with the opinion of the District Court than with the majority opinion. Accordingly, I would adhere to the result and the conclusions reached by the District Court. It appears to me that the majority opinion is not correct in holding that the mineral reservation provided for a contractual prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by the Louisiana statutes, which is to say, that there were conditions or a condition set forth in the contract which made the period for which the servitude was established indefinite and uncertain. The reservation was not of indefinite duration in my view, but was for a definite, fixed and specified time which elapsed on December 21," }, { "docid": "21364691", "title": "", "text": "the statute, especially with reference to problems of constitutionality. The District Court recognized the importance of the statute in deciding this case; it also recognized that a problem of interpretation was involved, that the statute cannot be read by him who runs. What are the situations to which the statute is applicable? Is the statute merely declaratory of prior Louisiana law? What are the problems that it was designed to meet? The answers to these questions are, or may be, relevant. Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court. The Louisiana declaratory judgment procedure appears available to secure such an interpretation, La.Rev.Stat., 1950, 13:4231 et seq., and the United States of course may appear to urge' its interpretation of the statute.. See Stanley v. Schwalby, 147 U.S. 508, 512-513 [13 S.Ct. 418, 37 L.Ed. 259]. It need hardly be added that the state courts in such a proceeding can decide definitively only questions, of state law that are not subject to> overriding federal law. “We therefore modify the judgment of the Court of Appeals to permit an interpretation of the state' statute to be sought with every expedition in the state court in conformity with this opinion.” Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229, 230, 77 S.Ct. 287, 292, 293, 1 L.Ed.2d 267. The Louisiana courts rendered three published opinions, the last of which is presently of most importance. The Supreme Court of Louisiana summarized its advice to the federal courts as follows: “To summarize in conclusion, it is our view, and we hold: First, that if the reservation in the Leiter deed is ■construed as establishing a mineral ■servitude for a definite, fixed, and ■specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied ; and second, that if the reservation is construed as not establishing a servitude for a" }, { "docid": "22143591", "title": "", "text": "the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took “nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws .... [This] mere expectancy . . . cannot be regarded as a vested right protected by the Constitution.” 190 F. 2d, at 1008-1009. In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which in 1938 had sold a substantial tract in Plaquemines Parish, Louisiana, to the United States. Leiter’s federal sale was subject to a mineral reservation in Leiter’s favor, providing in essence that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a defined period. At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate “and complete fee in the land becomes vested in the United States.” The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration. After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States sued in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Court, and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 229 (1957). Adhering to the terms of the remand, Leiter sought a declaratory judgment" }, { "docid": "9743339", "title": "", "text": "In 1935, the United States, acting under the Migratory Bird Conservation Act, contracted to purchase almost 9000 acres of land in south Louisiana. The seller reserved the minerals for a ten-year period with provisions for extensions of five years so long as certain minimum use was made of the rights. In Louisiana the sale or reservation of mineral rights establishes only a servitude or right to extract the minerals. Servitudes prescribe in ten-years for non-use, a prescription that cannot be avoided by contract. In 1938, before the conveyance, the Louisiana legislature adopted a statute providing that prescription of mineral rights should not run against the State or United States. This legislation was replaced by Act 315 of 1940 restricting the exemption to the United States. The Louisiana court held that Act 315 would not apply if the deed provided for a mineral servitude for fixed term, but would apply if the term were indefinite. Leiter Minerals, Inc., successor to the seller of the land, filed suit in 1953 to have itself declared owner of the mineral rights. The United States then filed suit to quiet title. This Court, applying state law, held that the reservation was for an indefinite term. Here, therefore, we have the United States a party to the litigation concerning its rights under a contract entered into pursuant to a federal statute. Directly affected are national policies under that statute, policies relating to the conservation of our national resources, and settled policies of federal land acquisition. Presumably the Government paid more to obtain the favorable term. “It seems reasonable to assume a congressional intent that rights for which the Government has paid should not be taken away by operation of special state legislation directed against the United States.” Note, 78 Harv.L.Rev. 891, 895 (1965). Finally, the case involved state legal concepts exceptionally complex and foreign to common law concepts. I must say, if federal common law applies in the case now before this Court, Leiter Minerals, Inc. was an a fortiori case for federal common law. This Court held otherwise: “We have no doubt that the Congress" }, { "docid": "11396275", "title": "", "text": "the decision of the United States in Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, is controlling. Leiter brought an action in a Louisiana state court against certain mineral lessees of the United States. Leiter was out of possession, but claimed title to and sought to have itself declared owner of the mineral rights under land owned by the United States and also sought an accounting for oil and other minerals removed by such lessees under their lease from the United States. Leiter founded its claim on Louisiana Act No. 315 of 1940, L.S.A.-R.S. 9:5806, which, it alleged, made “imprescriptible” a reservation of mineral rights in a deed of December 21, 1938, to the United States by its predecessor in title. After the commencement of the state court action the United' States filed an independent action to quiet its title to the mineral rights, naming all the parties to the state court action as defendants, and sought a preliminary and permanent injunction to restrain the defendants from further prosecution of the state court action. The Federal District Court issued a preliminary injunction. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the order grant ing the preliminary injunction. The Supreme Court granted certiorari and affirmed the judgment of the Court of Appeals. In its decision the Supreme Court held that the United States was not precluded from seeking injunctive relief by the provisions of 28 U.S.C. § 2283, and that injunctive relief, under the circumstances, was proper. Counsel for the Alonzos seek to distinguish the Leiter case by reason of the fact that there the Government was the owner of the lands in fee simple and in the instant case the fee simple title to the lands involved is in the Pueblo and the Government is suing to vindicate the title of the Pueblo. But restricted Indian land is property in which the United States has an interest. In United States v. Hellard, 322 U.S. 363, 64 S.Ct. 985, 987, 88 L.Ed. 1326, the question was presented as to" }, { "docid": "21364690", "title": "", "text": "prescription for the conditional extinguishment of the mineral servitude which was rendered inoperative by the Louisiana statutes. The first suit was filed in a Louisiana state court on August 13, 1953 by Leiter, against California and Allen L. Lobrano. The United States then filed in the federal district court the present action to quiet title, asserting its right to the minerals. The district court granted a preliminary injunction enjoining Leiter from prosecuting the state court action. This Court affirmed. On certiorari, the Supreme Court modified the judgment of ■this Court to permit an interpretation of the Louisiana statute involved to be sought with every expedition in the Louisiana courts, saying: “The Government contends that Act No. 315 of 1940 does not apply when the parties themselves have contracted for a reservation of specific duration and that if the statute' is construed to apply to this situation, it would impair the obligation of the Government’s contract. Petitioner disagrees. The Supreme Court of Louisiana has never considered the specific issue or even discussed generally the rationale of' the statute, especially with reference to problems of constitutionality. The District Court recognized the importance of the statute in deciding this case; it also recognized that a problem of interpretation was involved, that the statute cannot be read by him who runs. What are the situations to which the statute is applicable? Is the statute merely declaratory of prior Louisiana law? What are the problems that it was designed to meet? The answers to these questions are, or may be, relevant. Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court. The Louisiana declaratory judgment procedure appears available to secure such an interpretation, La.Rev.Stat., 1950, 13:4231 et seq., and the United States of course may appear to urge' its interpretation of the statute.. See Stanley v. Schwalby, 147 U.S. 508, 512-513 [13 S.Ct. 418, 37 L.Ed. 259]. It need hardly" }, { "docid": "22143593", "title": "", "text": "in the Louisiana courts, which expressed some continuing doubt over the breadth of their responsibility for resolving the Leiter controversy on its own facts. Ultimately, the Louisiana Supreme Court took jurisdiction of the case and rendered a declaratory judgment limited to general elucidation of Act 315, without applying the Act to the specific terms of the Leiter mineral reservation itself. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845 (1961). The Louisiana Supreme Court expressed its conclusions as follows: “First, that if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional ex-tinguishment of the mineral servitude created, then Act 315 of 1940 is applicable and constitutional.” Id., at 942, 132 So. 2d, at 854-855. Recognizing that “the interpretation of this reservation is for the United States courts, and not for us in this proceeding,” id., at 930, 132 So. 2d, at 850, that court nevertheless hinted broadly that it viewed the Leiter reservation as one establishing a reservation for an indefinite period of time, and thus one subject to retroactive application of Act 315. See id., at 936, 938, 132 So. 2d, at 852, 853. The parties then returned to federal court. The District Court held that the mineral reservation in the Leiter deed created a mineral servitude for a fixed period and that, under the terms of the Louisiana Supreme Court’s declaratory ruling, as a matter of state law the reservation was not affected by Act 315. 204 F. Supp. 560 (ED La. 1962). The Court of Appeals reversed. It rejected the Government’s contention that federal law controlled the rights of the United States under the reservation, and held, instead, that those" } ]

[ { "docid": "22117453", "title": "", "text": "Company, a Maine corporation, doing business as Lederle Laboratories, Inc., alleging that the vaccine caused or contributed to paralysis suffered by plaintiff. The suit in the United States District Court came on for trial on the amended complaint and answer. As the jury was about to be called to the box, the plaintiff announced to the court that he was unable to proceed due to the absence of an important witness, and moved for dismissal under Rule 41(a) (2), Federal Rules of Civil Procedure. The court dismissed the suit but reserved ruling whether the dismissal was with or without prejudice and reserved ruling on other conditions which might be fixed to the dismissal. After briefs were filed and considered, the terms and conditions of the dismissal were established by the court. It ordex-ed that the dismissal which was previously entered “ * * * be without prejudice to the right of the plaintiff to refile another suit based upon the same claim. * * however, the plaintiff’s right to refile was conditioned upon prior payment to the defendant for costs and reasonable attorney’s fee. It is from this order that the defendant appeals. We are, therefore, directly concerned here with voluntary dismissal by order of court only entered under Rule 41(a) (2), but appellant says the language of Rule 41(a) (1) which limits voluntary dismissals by notice is applicable to voluntary dismissals granted by the court. This requires examination of both sections of the rule. Voluntary dismissal of civil actions in federal courts is governed by Rule 41(a), Federal Rules of Civil Procedure. Within this Rule there are three separate and distinct methods of voluntarily dismissing a suit. The first and second methods are covered by Rule 41(a) (1) which provides for a dismissal by notice, and dismissal by stipulation of the parties. The third method is found in Rule 41 (a) (2) which provides for a dismissal by order of court upon such condition as the court considers just. Rule 41(a) (1) is the shortest and surest route to abort a eomplaint when it is applicable. So long as" } ]

[ { "docid": "3325691", "title": "", "text": "corporation. Since this situation would arise in either this district or the District of Maryland, it does not have any effect on the decision whether or not to transfer the case. However, it is worth noting that both the Third and Fourth Circuits have held that in a diversity action in which diversity exists between a plaintiff and defendant, the defendant may implead a third party of the same citizenship as the plaintiff, on the theory that there is ancillary jurisdiction over the third-party claim. See, e. g., Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948); Kenrose Manufacturing Co., Inc. v. Fred Whitaker Co., Inc. v. Kilodyne, Inc., 512 F.2d 890, 893 (4th Cir. 1972). Since the Court has concluded that impleader of Bartlett as a third-party defendant would be possible if the case were retained in this district, it must consider whether Ohio Casualty’s other contentions would warrant a transfer. Ohio Casualty argues that the ease should be transferred to the District of Maryland because Maryland law will be applied in this case. While this is a factor which a court should consider on a motion for transfer, see, Van Dusen v. Barrack, 376 U.S. 612, 645, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), it is not a decisive factor requiring transfer. See, Ocean Science & Engineering, Inc. v. International Geomarine Corp., 312 F.Supp. 825, 830 (D.Del.1970); Atlantic-Richfield Co. v. Stearns-Roger, Inc., 379 F.Supp. 869, 872 (E.D.Pa.1974). Ohio Casualty argues further that this case should be transferred since most of the conduct at issue in the case occurred in Maryland, while very little of it occurred in Delaware. This is certainly a factor in favor of transfer. See, e. g., Tennant v. Sproul, 337 F.Supp. 404 (W.D.Pa.1972). Again, however, it is not a decisive factor. See, e. g., Bridgeman v. Bradshaw, 405 F.Supp. 1004, 1007 (D.S.C.1975). While Lee’s choice of forum is entitled to less weight because Delaware is not his “home turf” and because the case" }, { "docid": "3325690", "title": "", "text": "e. g., McGonigle, supra at 63, citing Kaplan, Amendments to the Federal Rules of Civil Procedure, 1961-1963 (I), 77 Harv.L.Rev. 601, 633 (1964). This Court does not find it necessary to determine which “minimum contacts” standard should be applied in this case, since Bartlett clearly meets either of the tests previously set out in the case law. Since Bartlett is incorporated in Maryland, and transacted the business at issue within 100 miles of the federal courthouse in Wilmington, Delaware, there is no question that it possesses the requisite contacts with both the state of service (assuming it is served in Maryland) and the bulge area. See, Md. Cts. & Jud.Pro.Code Ann. § 6-102 (1974); 8 Del.C. § 382. Since Rule 4(f) does not affect the need for subject matter jurisdiction, the question remains whether Bartlett could be impleaded in this diversity case without an independent grounds for jurisdiction. If Ohio Casualty were to implead Bartlett in this case, there would be no diversity between the plaintiff, a Maryland citizen, and the third-party defendant, a Maryland corporation. Since this situation would arise in either this district or the District of Maryland, it does not have any effect on the decision whether or not to transfer the case. However, it is worth noting that both the Third and Fourth Circuits have held that in a diversity action in which diversity exists between a plaintiff and defendant, the defendant may implead a third party of the same citizenship as the plaintiff, on the theory that there is ancillary jurisdiction over the third-party claim. See, e. g., Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948); Kenrose Manufacturing Co., Inc. v. Fred Whitaker Co., Inc. v. Kilodyne, Inc., 512 F.2d 890, 893 (4th Cir. 1972). Since the Court has concluded that impleader of Bartlett as a third-party defendant would be possible if the case were retained in this district, it must consider whether Ohio Casualty’s other contentions would warrant a transfer. Ohio Casualty argues that the ease should be transferred to the District of Maryland because Maryland law will be" }, { "docid": "8651085", "title": "", "text": "After Whitaker served its answer, it moved for and was granted permission to file a third-party complaint against Kilodyne, Inc., a Virginia corporation operating its industrial plant in close proximity to Kenrose’s dressmaking plant. In its third-party complaint against Kilo-dyne, Whitaker alleged, in the language of F.R.Civ.P. 14, that, should Kenrose recover judgment against Whitaker, Kilodyne “is or may be liable for all or part of” the plaintiff’s claim against defendant Whitaker. Seven days later, Kenrose amended the complaint to expand its original cause of action for nuisance to include a direct claim against the third-party defendant Kilodyne for injunctive and monetary relief. Kilodyne thereupon moved to dismiss the amended complaint as to it on the ground that diversity between it and the plaintiff Kenrose was absent. The court took the motion under advisement. In the meantime, third-party plaintiff Whitaker, after further investigation, moved for a voluntary dismissal, without prejudice, of its own third-party action against Kilodyne. Kilodyne supported this motion. After a court-appointed master had taken evidence, the District Judge granted Whitaker’s motion to dismiss its third-party action without prejudice as well as Kilodyne’s motion to dismiss Kenrose’s amended complaint. The trial court certified that its rulings on the above motions involved “a controlling question of law as to which there is a substantial ground for a difference of opinion.” This court, agreeing that an immediate appeal would advance “the ultimate termination of the litigation,” granted Kenrose permission to bring this interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). II Kilodyne based its motion to dismiss Kenrose’s amended complaint as to it on the undisputed fact that all the individual plaintiffs in the action, as well as Kilodyne itself, are Virginia citizens. As no other basis for jurisdiction appears to exist if there is no diversity of citizenship, Kilodyne argues that there is no subject-matter jurisdiction for Kenrose’s action against it. Kenrose replies that a proper view of the law includes no requirement of diversity as between a plaintiff and a third-party defendant where plaintiff asserts an affirmative claim against the third-party defendant. Kenrose submits that Kilodyne’s presence in" }, { "docid": "8651093", "title": "", "text": "a third-party defendant. Thus, the dismissal order did not disadvantage Kenrose, for, as we have seen, its jurisdictional position was the same whether Kilodyne was in the case as an initial co-defendant or as a third-party defendant. Under the standards of Federal Rule 41, therefore, the District Court acted well within the range of its discretion in dismissing the third-party action despite Kenrose’s opposition. To summarize: the District Court acted with complete propriety, committing no abuse of discretion in granting Whitaker’s motion for a voluntary dismissal of its third-party cause of action. This being so, there remained not even an arguable jurisdictional footing for Ken-rose’s amended complaint against the third-party defendant, Kilodyne. The District Court, as a result, correctly granted Kilodyne’s motion to dismiss Kenrose’s amended complaint for lack of subject-matter jurisdiction. Affirmed. . According to Whitaker, the voluntary dismissal was sought because, after pre-trial discovery was completed, it became apparent that Whitaker had no valid indemnification claim against Kilodyne under Virginia law. This lack was fatal to the third-party action because a possibility of indemnification is the only basis upon which a third party may be impleaded under Rule 14. McPherson v. Hoffman, 275 F.2d 466 (6 Cir. 1960); Nat’l Mut. Life Ins. Co. of D.C. v. Liberty Mut. Life Ins. Co., 90 U.S.App.D.C. 362, 196 F.2d 597, cert. denied, 344 U.S. 819, 73 S.Ct. 15, 97 L.Ed. 638 (1952). Although federal law provides the procedures to be used in an impleader action, it is necessary to look to state law, in a diversity case such as this, for the requisite right of indemnification. General Dynamics Corp. v. Adams, 340 F.2d 271 (5 Cir. 1965); Brooks v. Brown, 307 F.Supp. 907 (E.D.Va.1969). Virginia law plainly denies the defendant in a nuisance action any right to indemnification from another party unless the third party and the defendant were acting in concert when the nuisance was created. See Finley v. Waddell, 207 Va. 602, 151 S.E.2d 347 (1966). After the testimony of various experts was available, it became evident that Whitaker and Kilodyne did not act in concert to produce the" }, { "docid": "3325698", "title": "", "text": "were bound by the forum state’s long-arm statute, there would have been little reason for the 100-mile provision of Rule 4(f), since other sections of Rule 4 provide for service on persons already subject to the forum state’s long-arm statute. See, Coleman, supra at 251-252. . At least one commentator has suggested that the courts should apply a federal standard for amenability to suit when service is made under Rule 4(f). See, 4 Wright & Miller, supra § 1127 at 534-535, § 1075 at 314. However, no court has yet unequivocally adopted such a standard. See, Annot., 8 A.L.R.Fed. 784, 789-790 (1971). . Rule 4(f) does not conflict with Fed.R.Civ.P. 82 which states that the Federal Rules of Civil Procedure should not be construed to extend the jurisdiction of the United States district courts or the venue of actions therein. Rule 82 refers to subject matter jurisdiction, not to personal, or territorial, jurisdiction. See, Mississippi Publishing Corp., supra, 326 U.S. at 445, 66 S.Ct. 242. . See Advisory Committee Note on 1963 Amendment to Rule 4(f). . However, lack of diversity between Lee and Bartlett would be a problem in either district if Lee decided to amend his complaint in order to allege a claim against Bartlett if the latter were to be impleaded as a third-party defendant in this case. (Lee has not expressed any such desire to date.) The Fourth Circuit has concluded that a plaintiff in a diversity case should not be permitted to amend his complaint to allege a claim against a non-diverse third-party defendant without an independent jurisdictional basis. See, Kenrose Manufacturing Co., Inc. v. Fred Whitaker Co., Inc. v. Kilodyne, Inc., 512 F.2d 890, 893-894 (4th Cir. 1972). The Third Circuit has not ruled on the point, cf., Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948), and the district courts within the Circuit are split. See, discussion in CCF Industrial Park, Inc. v. Hastings Industries, Inc., 392 'F.Supp. 1259 (E.D.Pa. 1975), and cases cited therein. There are some indications in the case law that the Third Circuit would be" }, { "docid": "8651098", "title": "", "text": "Aetna Casualty & Surety Co., 426 F.2d 709 (5 Cir. 1970) and Union Bank and Trust Co. v. St. Paul Fire & Marine Ins. Co., 38 F.R.D. 486 (D.C.Neb.1965), also cited by appellant, deal with a situation different from that before us. In each the court considered the necessity of an independent ground of federal jurisdiction to support a third-party defendant’s claim against the plaintiff, holding no such independent ground was required. That these de cisions should be limited to their own facts is indicated by the court’s discussion of the point in Revere Copper: [Appellant] argues that since there must be an independent ground of jurisdiction to support the original plaintiffs claim against a third-party defendant, the same requirement must be met by the third-party defendant in asserting a counterclaim against the original plaintiff. Suffice it to say that the two situations are the converse of each other only superficially and that there are differences which militate against identical treatment. First of all, the plaintiff has the option of selecting the forum where he believes he can most effectively assert his claims, he has not been involuntarily brought to a forum, faced with the prospect of defending himself as best he can under the rules that forum provides, or defending himself not at all. Since a plaintiff could not initially join a non-diverse defendant, it is arguable he should not be allowed to do so indirectly by way of a fortuitous impleader. Moreover, there is the possibility, whether real or fanciful, of collusion between the plaintiff and an overly cooperative defendant impleading just the right third party. * * * Consequently, this decision is to be strictly limited to the precise question decided. 426 F.2d at 716 (footnote omitted). . In its brief on appeal, Kenrose argued that any objection Kilodyne might have had to the subject-matter jurisdiction of the court was waived when Kilodyne answered the amended complaint against it without raising the point. It is now plain, beyond the necessity for citation of authority, that lack of subject-matter jurisdiction can never be waived and may be raised" }, { "docid": "3325699", "title": "", "text": "4(f). . However, lack of diversity between Lee and Bartlett would be a problem in either district if Lee decided to amend his complaint in order to allege a claim against Bartlett if the latter were to be impleaded as a third-party defendant in this case. (Lee has not expressed any such desire to date.) The Fourth Circuit has concluded that a plaintiff in a diversity case should not be permitted to amend his complaint to allege a claim against a non-diverse third-party defendant without an independent jurisdictional basis. See, Kenrose Manufacturing Co., Inc. v. Fred Whitaker Co., Inc. v. Kilodyne, Inc., 512 F.2d 890, 893-894 (4th Cir. 1972). The Third Circuit has not ruled on the point, cf., Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948), and the district courts within the Circuit are split. See, discussion in CCF Industrial Park, Inc. v. Hastings Industries, Inc., 392 'F.Supp. 1259 (E.D.Pa. 1975), and cases cited therein. There are some indications in the case law that the Third Circuit would be liberal in permitting a plaintiff to amend his complaint to allege a claim against a third-party defendant. See, Jacobson v. Atlantic City Hospital, 392 F.2d 149, 153 (3d Cir. 1968); Borror v. Sharon Steel Co., 327 F.2d 165, 174 (3d Cir. 1964). But cf., Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1233 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976). Most of the district courts in the Third Circuit which have ruled on the matter have held that the plaintiff .may not amend his complaint in such a situation. See, e. g., Chestnut Run Federal Credit Union v. Employers Mutual Liability Insurance of Wisconsin, 392 F.Supp. 76, 78 (D.Del.1975); cases cited in CCF Industrial Park, supra at 1261 n. 2. But cf., Note, Rule 14 Claims and Ancillary Jurisdiction, 57 Va.L.Rev. 265, 274-275 (1971). . Ohio Casualty actually argues that none of the conduct at issue in this case occurred in Delaware, and that all of it occurred in Maryland. This is not entirely accurate. The suit" }, { "docid": "8651092", "title": "", "text": "inevitable result, plaintiff contends that the District Court abused its discretion in granting Whitaker’s motion to dismiss because dismissal prejudiced Kenrose by depriving it of a jurisdictional basis for its claim against Kilodyne. We are not impressed by this logic. Under Rule 41(a), prior to the service of an answer to the third-party complaint, Whitaker would have been entitled as of right to a voluntary dismissal of his third-party complaint against Kilodyne. Since Whitaker did not make its request for dismissal until after Kilodyne had answered, it was for the District Court to decide whether dismissal of the third-party action would prejudice any party. American Cyanamid Co. v. McGhee, 317 F.2d 295, 298 (5 Cir. 1963); Southern Ry. v. Chapman, 235 F.2d 43 (4 Cir. 1956). If no prejudice appeared, dismissal was in order. Demonstrably, no prejudice resulted to any party from the order of dismissal. As heretofore noted, the firmly established rule would require Kenrose to show an independent jurisdictional basis for its claim against Kilo-dyne even if Kilodyne remained in the case as a third-party defendant. Thus, the dismissal order did not disadvantage Kenrose, for, as we have seen, its jurisdictional position was the same whether Kilodyne was in the case as an initial co-defendant or as a third-party defendant. Under the standards of Federal Rule 41, therefore, the District Court acted well within the range of its discretion in dismissing the third-party action despite Kenrose’s opposition. To summarize: the District Court acted with complete propriety, committing no abuse of discretion in granting Whitaker’s motion for a voluntary dismissal of its third-party cause of action. This being so, there remained not even an arguable jurisdictional footing for Ken-rose’s amended complaint against the third-party defendant, Kilodyne. The District Court, as a result, correctly granted Kilodyne’s motion to dismiss Kenrose’s amended complaint for lack of subject-matter jurisdiction. Affirmed. . According to Whitaker, the voluntary dismissal was sought because, after pre-trial discovery was completed, it became apparent that Whitaker had no valid indemnification claim against Kilodyne under Virginia law. This lack was fatal to the third-party action because a possibility of" }, { "docid": "8651094", "title": "", "text": "indemnification is the only basis upon which a third party may be impleaded under Rule 14. McPherson v. Hoffman, 275 F.2d 466 (6 Cir. 1960); Nat’l Mut. Life Ins. Co. of D.C. v. Liberty Mut. Life Ins. Co., 90 U.S.App.D.C. 362, 196 F.2d 597, cert. denied, 344 U.S. 819, 73 S.Ct. 15, 97 L.Ed. 638 (1952). Although federal law provides the procedures to be used in an impleader action, it is necessary to look to state law, in a diversity case such as this, for the requisite right of indemnification. General Dynamics Corp. v. Adams, 340 F.2d 271 (5 Cir. 1965); Brooks v. Brown, 307 F.Supp. 907 (E.D.Va.1969). Virginia law plainly denies the defendant in a nuisance action any right to indemnification from another party unless the third party and the defendant were acting in concert when the nuisance was created. See Finley v. Waddell, 207 Va. 602, 151 S.E.2d 347 (1966). After the testimony of various experts was available, it became evident that Whitaker and Kilodyne did not act in concert to produce the pollution damage complained of by Kenrose. Thus, Virginia law would recognize no indemnification right as between Whitaker and Kilo-dyne and the third-party action was inappropriate. Realizing that, for this reason, its third-party action was defective, Whitaker moved for a dismissal. . Agraskell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 586 (2 Cir. 1965); Stemmier v. Burke, 344 F.2d 393 (6 Cir. 1965). See also 3 J. Moore, Federal Practice ¶ 14.26 at 701-702 (1968). . These rules shall not be construed to extend or limit the jurisdiction of the United States district court * * * . Rule 82, Federal Rules of Civil Procedure. . The notes of the Advisory Committee to the 1946 Amendments to the Rules of Civil Procedure also indicate the necessity of such an independent basis of jurisdiction. . McPherson v. Hoffman, 275 F.2d 466 (6 Cir. 1960). . Heintz & Co. v. Provident Tradesman Bank & Trust Co., 30 F.R.D. 171 (E.D.Pa.1962). . Stemmier v. Burke, 344 F.2d 393 (6 Cir. 1965); Peter Pan Fabrics, Inc. v. Kay Windsor" }, { "docid": "8651091", "title": "", "text": "Other authorities relied upon by appellant are found to be unrelated to the point at issue, or are readily distinguishable. If this were the sum of the matter, we would feel entirely justified in affirming the District Court simply on the authority of the uniform precedents mentioned above. But, on the specific facts of this case, there is an even stronger reason for applying the majority rule. Kenrose’s only colorable claim to jurisdiction for its action against Kilodyne was that the action came within the ancillary jurisdiction emanating from the suit between Whitaker and Kilodyne — ■ the third-party action.4 ******** Once the District Court, upon third-party plaintiff Whitaker’s motion and with Kilodyne’s consent, dismissed the third-party complaint, any basis for the exercise of ancillary jurisdiction completely evaporated. Kilodyne thereupon lost its status as a third-party defendant and became no more than a co-defendant of Whitaker. Under these circumstances, it is plain that diversity would be required as between Kilodyne and Kenrose. Straw-bridge v. Curtiss, 7 U.S. 266, 2 L.Ed. 435 (1806). To avert this inevitable result, plaintiff contends that the District Court abused its discretion in granting Whitaker’s motion to dismiss because dismissal prejudiced Kenrose by depriving it of a jurisdictional basis for its claim against Kilodyne. We are not impressed by this logic. Under Rule 41(a), prior to the service of an answer to the third-party complaint, Whitaker would have been entitled as of right to a voluntary dismissal of his third-party complaint against Kilodyne. Since Whitaker did not make its request for dismissal until after Kilodyne had answered, it was for the District Court to decide whether dismissal of the third-party action would prejudice any party. American Cyanamid Co. v. McGhee, 317 F.2d 295, 298 (5 Cir. 1963); Southern Ry. v. Chapman, 235 F.2d 43 (4 Cir. 1956). If no prejudice appeared, dismissal was in order. Demonstrably, no prejudice resulted to any party from the order of dismissal. As heretofore noted, the firmly established rule would require Kenrose to show an independent jurisdictional basis for its claim against Kilo-dyne even if Kilodyne remained in the case as" }, { "docid": "8651099", "title": "", "text": "believes he can most effectively assert his claims, he has not been involuntarily brought to a forum, faced with the prospect of defending himself as best he can under the rules that forum provides, or defending himself not at all. Since a plaintiff could not initially join a non-diverse defendant, it is arguable he should not be allowed to do so indirectly by way of a fortuitous impleader. Moreover, there is the possibility, whether real or fanciful, of collusion between the plaintiff and an overly cooperative defendant impleading just the right third party. * * * Consequently, this decision is to be strictly limited to the precise question decided. 426 F.2d at 716 (footnote omitted). . In its brief on appeal, Kenrose argued that any objection Kilodyne might have had to the subject-matter jurisdiction of the court was waived when Kilodyne answered the amended complaint against it without raising the point. It is now plain, beyond the necessity for citation of authority, that lack of subject-matter jurisdiction can never be waived and may be raised by any party at any stage of the litigation. . Rule 41, governing the voluntary dismissal of actions, applies in terms to third-party claims also. Rule 41(c)." }, { "docid": "22297693", "title": "", "text": "denied absent substantial prejudice to the defendant. E.g., Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 895 (4 Cir.1972). Andes argues that this lawsuit had not proceeded far enough and that any burdens imposed upon Herr and FWI were not severe enough, to constitute substantial prejudice and preclude dismissal without prejudce under Rule 41(a)(2). Herr and FWI argue that they have already incurred significant expenses, not only in responding to Andes’ complaint and filing motions and memoranda in support of summary judgment, but also by incurring substantial costs of discovery, through depositions, production of documents, and obtaining of expert opinions on English law. Although this is not a case of extreme prejudice to defendants, see, e.g., Rollison v. Washington National Ins. Co., 176 F.2d 364 (4 Cir.1949) (dismissal without prejudice not proper where plaintiff sought to dismiss after complaint had been amended three times, a trial date set, and a jury sworn, and the trial judge had decided that plaintiff had not stated a claim); Young v. John McShain, Inc., 130 F.2d 31 (4 Cir.1942) (proper to deny motion to dismiss made when case was already at trial and plaintiff had admitted that the claims sought to be dismissed were without merit), yet the proceedings were more advanced than a number of cases cited in which voluntary dismissal was held proper, see, e.g., Southern Ry. v. Chapman, 235 F.2d 43 (4 Cir.1956) (defendant had merely filed a motion for transfer); Holiday Queen Land Corp. v. Baker, 489 F.2d 1031 (5 Cir.1974) (motion filed just four months after defendant joined as party, defendant having participated in little or no discovery and incurred “a minimum of expense”). It is our judgment that there was a sufficient basis for denying Andes’ Rule 41(a)(2) motion and thus we cannot say that the district court abused its discretion in refusing to dismiss without prejudice. B. Dismissal with Prejudice Review of the court’s dismissal with prejudice presents a more difficult problem, compounded by the district court’s failure to disclose the basis for its ruling. Andes bases its argument that the court’s dismissal with prejudice" }, { "docid": "11819989", "title": "", "text": "v. Gibbs, supra, was concerned with pendent jurisdiction only. The Supreme Court does not appear to have decided whether the doctrine of ancillary jurisdiction empowers a federal court to decide a direct claim by a plaintiff against a non-diverse third party defendant in the absence of an independent jurisdictional basis. In Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973) and Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), as well as in Seals v. Quarterly County Court, 526 F.2d 216 (6th Cir. 1975), the federal court had jurisdiction based on a substantial federal question and the claims arising under state law were asserted under the court’s pendent jurisdiction. Furthermore, third party defendants were not involved. The Fourth Circuit decided the very issue now before this court in Kenrose Mfg. Co. v. Fred Whitaker Co., Inc., 512 F.2d 890 (1972). The court considered the post-Gibbs trend among some district courts to dispense with the requirement of an independent basis of jurisdiction and the views of several distinguished commentators. Nevertheless, it affirmed the district court’s dismissal of the plaintiff’s amended complaint setting up a claim against a non-diverse third party defendant, noting that— With impressive consistency the overwhelming majority has held an independent jurisdictional basis to be a prerequisite to the maintenance of such a claim. 512 F.2d at 893. (citations omitted). Parker v. W. W. Moore & Sons, Inc., 528 F.2d 764 (4th Cir. 1975), followed the ruling in Kenrose, “at least in the circumstances of a case such as this,” after noting criticism of the Kenrose decision by several commentators. Since the Supreme Court has not spoken on this important jurisdictional question we are not disposed to adopt an inflexible rule of general application. However, we have no hesitancy in concluding that the district court abused its discretion in permitting Saalfrank to recover from Parkview in the present case. This case was peculiarly unsuitable for the exercise of ancillary jurisdiction over the claim of Saalfrank against Parkview. The action in the Indiana state court was tried to a" }, { "docid": "15008864", "title": "", "text": "on defendant’s appeal was that, although the district court decided the case primarily on the negligence issue, there was no showing of diversity jurisdiction. This Court held that even assuming the district court did not have diversity jurisdiction, the district court’s observation that the FELA claim was an “extremely close question” would be considered equivalent to an assertion of pendent jurisdiction, a matter well within the dis trict court’s discretion under the facts of the case. . See the discussion of Gibbs in n.6 supra. . Plaintiff has filed an identical state court action styled Curtis Fawvor v. Texaco, Inc. and B & B Insulation, Inc. (Cause No. E-101, 342, District Court, Jefferson County, Texas). . Realizing it had no valid indemnification claim, the defendant subsequently moved for a voluntary dismissal without prejudice of its third-party action, to which the third-party defendant consented. The trial court granted the motion. The circuit court noted that although the dismissal of the third-party action presented an even stronger reason for their holding requiring an independent ground for jurisdiction, it would feel “entirely justified” in assuming this position based on the authority of the uniform precedents discussed therein. 512 F.2d 890, 895. . Subsequent cases have adhered to the ruling in Kenrose: Parker v. Moore & Sons, Inc., 528 F.2d 764 (4th Cir. 1975), followed Kenrose “at least in the circumstances of a case such as this”, after noting criticism of the Kenrose decision by several commentators; Rosario v. American Export-Isbrandtsen Lines, Inc., 531 F.2d 1227 (3rd Cir. 1976); Saalfrank v. O’Daniel v. Parkview Memorial Hospital, Inc., 533 F.2d 325 (6th Cir. 1976), reluctantly followed Kenrose, stating: “Since the Supreme Court has not spoken on this important jurisdictional question, we are not disposed to adopt an inflexible rule of general application. However, we have no hesitancy in concluding that the district court abused its discretion in permitting [plaintiff] to recover from [third-party defendant] in the present case. This case was peculiarly unsuitable for the exercise of ancillary jurisdiction over the claim of [plaintiff] against [third-party defendant].” Id. at 330. . In Rollins, Inc. v." }, { "docid": "8651087", "title": "", "text": "the case rests on jurisdiction ancillary to the main action between Ken-rose and Whitaker. The next step in Kenrose’s argument is that, since the third-party defendant was already validly in the case when the amended complaint was served, no independent basis of jurisdiction is needed to support plaintiff’s subsequent direct action against Kilodyne. We proceed to test these assertions against the background of available precedent. Rule 14 of the Federal Rules of Civil Procedure governs third-party practice and it has indeed been held under that rule that, where there is diversity as between plaintiff and defendant, defendant may implead a third party of the same citizenship as the plaintiff. In such case, it may be said that ancillary jurisdiction confers power upon the court over the third-party action. Rule 14 also contains language permitting a plaintiff to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. There is, however, no indication in the rule whether a basis of jurisdiction independent of the main action must be alleged to support plaintiff’s claim against the third-party defendant. Where jurisdiction does not otherwise appear, mere permission, in the rules, to assert a claim, does not itself confer jurisdiction over that claim. By express provision the rules are not to be read as a source of jurisdiction. See Rule 82. To illuminate this point, we must necessarily look elsewhere. Many courts have considered whether an independent basis of jurisdiction is necessary to support a plaintiff’s action against a third-party defendant. With impressive consistency the overwhelming majority has held an independent jurisdictional basis to be a prerequisite to the maintenance of such a claim. See, e. g., Stemler v. Burke, 344 F.2d 393, 395 — 396 (6 Cir. 1965); McPherson v. Hoffman, 275 F.2d 466, 470 (6 Cir. 1960); Patton v. B & O R.R. Co., 197 F.2d 732, 743 (3 Cir. 1952); United States v. Lushbough, 200 F.2d 717, 721-722 (8 Cir. 1952); Friend v. Middle Atlantic Transportation Co., 153 F.2d 778, 779-780 (2 Cir.), cert." }, { "docid": "22956483", "title": "", "text": "S.C. 593, 103 S.E.2d 265 (1958). Then, on July 3, 1986, Davis informed the district court that she had no evidence that she was physically injured by Bryan's misconduct. The parties thus stipulated to dismissal with prejudice of the plaintiff's cause of action against TJSX for negligent supervision. With no claim left for the plaintiff to bring to trial, the district court dismissed the plaintiff's action against USX on July 9, 1986. This appeal followed. II. Rule 41(a)(2) allows a plaintiff, with the approval of the court, to dismiss voluntarily an action without prejudice at any time. Rule 41(a)(2) provides in pertinent part: Except as provided in paragraph (1) of this subdivision of this rule [dismissal before service or answer or dismissal by stipulation], an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. The decision to grant a voluntary dismissal under Rule 41(a)(2) is a matter for the discretion of the district court, and its order will ordinarily not be reversed except for an abuse of discretion. McCants v. Ford Motor Co., 781 F.2d 855, 857 (11 Cir.1986); Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 895 (4 Cir.1972). The purpose of Rule 41(a)(2) is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced. McCants, supra, 781 F.2d at 856; Alamance Industries Inc. v. Filene's, 291 F.2d 142, 146 (1 Cir.1961), cert. denied, 368 U.S. 831, 82 S.Ct. 53, 7 L.Ed.2d 33 (1961). To fulfill this purpose, Rule 41(a)(2) requires a court order as a prerequisite to dismissal and permits the district court to impose conditions on voluntary dismissal to obviate any prejudice to the defendants which may otherwise result from dismissal without prejudice. In considering a motion for voluntary dismissal, the district court must focus primarily on protecting the interests of the defendant. McCants, supra, 781 F.2d at 856; Hoffman v. Alside, Inc., 596 F.2d 822, 823 (8 Cir.1979); LeCompte v. Mr." }, { "docid": "22956484", "title": "", "text": "is a matter for the discretion of the district court, and its order will ordinarily not be reversed except for an abuse of discretion. McCants v. Ford Motor Co., 781 F.2d 855, 857 (11 Cir.1986); Kenrose Mfg. Co. v. Fred Whitaker Co., 512 F.2d 890, 895 (4 Cir.1972). The purpose of Rule 41(a)(2) is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced. McCants, supra, 781 F.2d at 856; Alamance Industries Inc. v. Filene's, 291 F.2d 142, 146 (1 Cir.1961), cert. denied, 368 U.S. 831, 82 S.Ct. 53, 7 L.Ed.2d 33 (1961). To fulfill this purpose, Rule 41(a)(2) requires a court order as a prerequisite to dismissal and permits the district court to impose conditions on voluntary dismissal to obviate any prejudice to the defendants which may otherwise result from dismissal without prejudice. In considering a motion for voluntary dismissal, the district court must focus primarily on protecting the interests of the defendant. McCants, supra, 781 F.2d at 856; Hoffman v. Alside, Inc., 596 F.2d 822, 823 (8 Cir.1979); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5 Cir.1976). The district court in this case considered two types of prejudice faced by USX in the event of dismissal: the fact that the plaintiff would pursue her state law claims against USX under a theory of respondeat superior in state court, and the significant resources expended by the defendant during the litigation of the plaintiff's claim in federal court. We will address both of these issues seriatim. A. The district court concluded that pursuit of the plaintiff's common law claims in state court would unfairly prejudice USX because USX's liability under a theory of respondeat superior was foreclosed by our previous opinion in this case. We did not in that opinion, nor do we today, intend to address the issue of the appropriate cause of action under South Carolina law by which liability for Bryan's acts could be imputed to IJSX, after the date that Stoutz gained knowledge of Bryan's acts. We merely held in our previous decision that South Carolina would allow liability for Bryan's actions" }, { "docid": "8651090", "title": "", "text": "assert claims directly against a third-party defendant without showing an independent ground of jurisdiction. Kenrose argues that such an approach would give currency to the philosophy of the law seeking, in the interest of efficiency, to avoid multiplicity of suits and piecemeal litigation. The value of efficiency in the disposition of lawsuits by avoiding multiplicity may be readily conceded, but that is not the only consideration a federal court should take into account in assessing the presence or absence of jurisdiction. Especially is this true where, as here, the efficiency plaintiff seeks so avidly is available without question in the state courts. The majority view, as outlined above, has its own valid supporting reasons and we fail to discern any movement away from the well-established rule, which is directly contrary to appellant’s contention. It is true that four lower court cases have favored appellant’s view. However, not only are these in the minority among the decided cases, but they have been far from convincing to other judges in the very jurisdictions where they were rendered. Other authorities relied upon by appellant are found to be unrelated to the point at issue, or are readily distinguishable. If this were the sum of the matter, we would feel entirely justified in affirming the District Court simply on the authority of the uniform precedents mentioned above. But, on the specific facts of this case, there is an even stronger reason for applying the majority rule. Kenrose’s only colorable claim to jurisdiction for its action against Kilodyne was that the action came within the ancillary jurisdiction emanating from the suit between Whitaker and Kilodyne — ■ the third-party action.4 ******** Once the District Court, upon third-party plaintiff Whitaker’s motion and with Kilodyne’s consent, dismissed the third-party complaint, any basis for the exercise of ancillary jurisdiction completely evaporated. Kilodyne thereupon lost its status as a third-party defendant and became no more than a co-defendant of Whitaker. Under these circumstances, it is plain that diversity would be required as between Kilodyne and Kenrose. Straw-bridge v. Curtiss, 7 U.S. 266, 2 L.Ed. 435 (1806). To avert this" }, { "docid": "8651084", "title": "", "text": "SOBELOFF, Senior Circuit Judge: Our task here is to determine whether independent subject-matter jurisdiction is necessary for a plaintiff in a federal court to maintain a claim directly against a third-party defendant. Notwithstanding the acknowledged relaxation of jurisdictional requirements in federal third-party practice, we agree with the District Judge that the course of action proposed by plaintiff would exceed the limits of the court’s power. We therefore affirm the District Court’s order dismissing the amended complaint against the third-party defendant for lack of subject-matter jurisdiction. I The factual setting in which this issue arises is as follows. In August of 1970, Kenrose Manufacturing Company, a New York corporation regularly doing business in Virginia, joined by 60 of its employees, all Virginia residents, instituted an action for injunctive and monetary relief against Fred Whitaker Company, Inc., a Pennsylvania corporation. Plaintiffs sought an injunction to halt the discharge of certain gaseous effluents by Whitaker’s nearby synthetic fabric and dye plant and, in addition, claimed compensation for damages allegedly sustained by them through prior discharges of the gas. After Whitaker served its answer, it moved for and was granted permission to file a third-party complaint against Kilodyne, Inc., a Virginia corporation operating its industrial plant in close proximity to Kenrose’s dressmaking plant. In its third-party complaint against Kilo-dyne, Whitaker alleged, in the language of F.R.Civ.P. 14, that, should Kenrose recover judgment against Whitaker, Kilodyne “is or may be liable for all or part of” the plaintiff’s claim against defendant Whitaker. Seven days later, Kenrose amended the complaint to expand its original cause of action for nuisance to include a direct claim against the third-party defendant Kilodyne for injunctive and monetary relief. Kilodyne thereupon moved to dismiss the amended complaint as to it on the ground that diversity between it and the plaintiff Kenrose was absent. The court took the motion under advisement. In the meantime, third-party plaintiff Whitaker, after further investigation, moved for a voluntary dismissal, without prejudice, of its own third-party action against Kilodyne. Kilodyne supported this motion. After a court-appointed master had taken evidence, the District Judge granted Whitaker’s motion to" }, { "docid": "8651086", "title": "", "text": "dismiss its third-party action without prejudice as well as Kilodyne’s motion to dismiss Kenrose’s amended complaint. The trial court certified that its rulings on the above motions involved “a controlling question of law as to which there is a substantial ground for a difference of opinion.” This court, agreeing that an immediate appeal would advance “the ultimate termination of the litigation,” granted Kenrose permission to bring this interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). II Kilodyne based its motion to dismiss Kenrose’s amended complaint as to it on the undisputed fact that all the individual plaintiffs in the action, as well as Kilodyne itself, are Virginia citizens. As no other basis for jurisdiction appears to exist if there is no diversity of citizenship, Kilodyne argues that there is no subject-matter jurisdiction for Kenrose’s action against it. Kenrose replies that a proper view of the law includes no requirement of diversity as between a plaintiff and a third-party defendant where plaintiff asserts an affirmative claim against the third-party defendant. Kenrose submits that Kilodyne’s presence in the case rests on jurisdiction ancillary to the main action between Ken-rose and Whitaker. The next step in Kenrose’s argument is that, since the third-party defendant was already validly in the case when the amended complaint was served, no independent basis of jurisdiction is needed to support plaintiff’s subsequent direct action against Kilodyne. We proceed to test these assertions against the background of available precedent. Rule 14 of the Federal Rules of Civil Procedure governs third-party practice and it has indeed been held under that rule that, where there is diversity as between plaintiff and defendant, defendant may implead a third party of the same citizenship as the plaintiff. In such case, it may be said that ancillary jurisdiction confers power upon the court over the third-party action. Rule 14 also contains language permitting a plaintiff to assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. There is, however, no indication in the rule whether a basis" } ]

[ { "docid": "17229872", "title": "", "text": "began to use the bags when it was selling Hygienic’s dish, and merely continued to use this not unusual wrapping for its own dishes after the “break” in 1954. Nor did Hutzler copy the merchandising technique from Hygienic; indeed, the opposite is true, and Hygienic adopted the idea years later in 1957. Similarly, it was Hutzler that first used saddle tops in 1954 when it was packaging Hygienic’s dishes under the Hutzler manufacturing imprint—apparently without objection from any quarter. And despite the fact that Hygienic was not wrapping its own dishes in this manner (in 1954) Hutzler substituted a new and distinctive label on the packages which contained the Hutzler dish. The trial court’s finding that Hutzler’s packaging practices were copied from Hygienic is wholly without support in the evidence; and the conclusions which rest upon it cannot stand. Furthermore, there was no attempt to mislead retail outlets into buying Hutzler’s dishes from Salzman in the belief that they were continuing to get Hygienic’s product as before. On November 17, 1954, the very day that Salzman notified Hygienic that it was terminating their relationship (as it had the right to do), Salzman circulated a letter to all of its customers which began: “Dear Customer: “Please be advised that we no longer represent the Hygienic Specialties Co., for the sale of Hygienic * * * Soap Dishes * * ” (PI. Exh. #9). This letter, in addition to factors already mentioned, is completely inconsistent with Hygienic’s claim that Salzman was “palming off.” ■ Finally, the court below based its holding that appellants engaged in unfair competition on a finding that Salzman and Hutzler violated Hygienic’s property rights. Liability can sometimes be predicated on such a theory, Blisscraft of Hollywood v. United Plastics Co., 2 Cir., 294 F.2d 698; Lincoln Restaurant Corp. v. Wolfies Restaurant Inc., supra, but the theory’s reach is uncertain. So far, it appears to have been limited to cases involving deceptive misappropriation of property rights and cases in which there was interference with confidential or contractual relationships. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at" } ]

[ { "docid": "2825188", "title": "", "text": "know any company that puts out yellow legal pads. The question does not evoke an answer that relates to the source of all such goods. What is wrong with the advertising evidence is that it fails to give any indication of the proportion of expenses allocated to promoting pink as an indication of source, a failure which can only result in guesswork by the court. Since Owens-Corning failed to carry its burden under the most minimal standard of proof it is difficult to understand how the Board imposed an improperly heavy burden. The Board’s evaluation of the evidence leading to its finding that Owens-Corning failed to establish that pink insulation is associated with a single source does not evoke a “definite and firm conviction that a mistake has been made.” United States v. United States Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Accordingly, its finding cannot be regarded as clearly erroneous and must be affirmed. . The only issue which the parties treated as present in this case was the establishment of secondary meaning. Accordingly, I believe that the issue of registrability of color per se remains open in an opposition proceeding or in litigation respecting this application or a resulting registration. . Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 161, 195 USPQ 689, 694 (1st Cir.1977) (yellow-colored oval mark; color alone cannot be appropriated as a trademark); Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366, 374 (S.D.N.Y.) (one cannot acquire a trademark by color alone), aff’d, 604 F.2d 200 (2d Cir.1979); Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569, 572, 123 USPQ 372, 375 (2d Cir.1959) (pink medicinal liquid; that a color may become someone’s exclusive property has been rejected by the courts throughout the years), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960); Campbell Soup Co. v. Armour & Co., 175 F.2d 795, 798, 81 USPQ 430, 433 (3d Cir.1949) (no exclusive use of half red and half white labels; one cannot acquire a trademark by color alone); North Shore" }, { "docid": "23158970", "title": "", "text": "reorders of the pitchers themselves. Since plaintiff’s name, as the manufacturer, appeared upon the labels, this identified plaintiff as the manufacturing source and reasonably explains why the letters were sent to the plaintiff. Despite the fact that plaintiff’s pitchers have not acquired a secondary meaning, relief might still be granted if plaintiff had established either (1) palming off by defendant, (2) actual deception of purchasers, or (3) a violation by defendant of plaintiff’s property rights. Norwich Pharmacal Co. v. Sterling Drug, Inc., 2 Cir., 1959, 271 F.2d 569, 571, certiorari denied 1960, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739. Here, the record fails to disclose any evidence of palming off or actual deception. Nor has it been shown that defendant violated any of plaintiff’s property rights in the presently recognized unfair competition sense of interference with confidential or contractual relations. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at page 572, note 6. A comparison of the labels used by plaintiff and defendant on their pitchers since August 1957 discloses no such visual similarity as to give rise to any danger of confusion, palming off or substitution. It follows that neither the manufacture and sale by defendant of pitchers bearing a close resemblance to those manufactured and sold by plaintiff, or the use by defendant of the labels adopted in September 1957, constituted unfair competition, and defendant has been guilty of no unfair competition since that date. Trademark Infringement and Unfair Competition (Count 8) The third count charges infringement by defendants of plaintiff’s common law (unregistered) trademark “Poly Pitcher” and unfair competition based upon the use by defendants of labels bearing those words which, in their overall appearance, are asserted to be deceptively similar to plaintiff’s labels. The critical facts are not disputed. Since September 1954 plaintiff has been manufacturing and selling polyethylene pitchers with labels affixed carrying the words “Poly Pitcher” in large letters. A statement that plaintiff is the manufacturer appears in small print. In May 1957 United began to market its polyethylene pitchers, in form substantially like plaintiff’s, with a label bearing the" }, { "docid": "2507690", "title": "", "text": "infringement by reason of the latter’s manufacture and sale of a hair curler sold under the registered trademark “Goody.” By another letter bearing the same date, Taylor-Bell also charged Woolworth with infringement by reason of its retail sale of Delamere’s “Goody” curlers. The letter to Wool worth was addressed to its principal place of business in New York. On May 25, 1961, Delamere’s attorney notified Taylor-Bell’s attorney orally, and on May 29, 1961 by letter, that Delamere would take legal steps to protect itself from Taylor-Bell’s charges. On June 1, 1961, Taylor-Bell instituted suit against Woolworth in the Western District of Virginia seeking temporary and permanent injunctions against Woolworth’s alleged patent infringements and unfair competition, and an accounting of profits in the sale of the alleged infringing “Goody” curlers by Woolworth. The latter, in its answer filed July 7, 1961, denied infringement and unfair competition and, as an affirmative defense, asserted the invalidity of the patent under which Taylor-Bell claimed. On June 21, 1961, Delamere instituted the instant suit seeking: (1) judgment declaring the Taylor-Bell patent invalid; (2) judgment declaring that Delamere is not competing unfairly with Taylor-Bell; (3) injunction restraining Taylor-Bell from suing Delamere or “any distributor, dealer, agent, and any customer of plaintiff and any user of plaintiff’s hair rollers or curlers” for infringement of the patent; and (4) damages for alleged tortious interference with Delamere’s business relations with Woolworth by reason of the warning letter of May 16. Taylor-Bell, in its answer filed July 11, denied Delamere’s claim and asserted counterclaims for patent infringement and unfair competition. The fragmentation of patent litigation is neither novel nor noble. See Rayco Mfg. Co. v. Chicopee Mfg. Corp. On several occasions when a declaratory judgment suit of this sort was followed by an infringement suit in another district by the original defendant against a customer of the first plaintiff, the courts of this circuit have stayed the proceedings against the customer. Remington Products Corp. v. American Aerovap, Inc.; Helene Curtis Industries, Inc. v. Sales Affiliates, Inc.; Telephonies Corp. v. Lindly & Co. It is apparent that many of the same" }, { "docid": "2507692", "title": "", "text": "considerations which led to those decisions are also present here. All the corporations here involved have their principal places of business in New York; all witnesses whose testimony would be relevant to \"the issue of validity or infringement are located in or near New York. Woolworth, even to defend the unfair competition aspects of the Virginia suit, would have to rely chiefly on witnesses connected with Delamere, since Woolworth sells the alleged infringing curlers in the packages and with the same labels it receives from Delamere; and it uses promotional materials supplied it by Delamere. Taylor-Bell is represented by Virginia counsel in its suit there, but its New York attorneys are “of counsel” in the Virginia suit. New York further appears to be the natural “theatre” for this “war,” Kerotest Mfg. Co. v. C-O-Two Co., because the warning letters were written by Taylor-Bell’s New York attorneys to the New York offices of Delamere and Woolworth, and the alleged Woolworth infringement, according to the deposition of Taylor-B ell’s president, was discovered by him in New York. Taylor-B ell’s simple assertion, in its brief, that the Virginia forum is “obviously more convenient” to it because “it chose that forum after deliberate review of all the facts,” is not persuasive. The convenience of witnesses would unquestionably be better served by a New York venue. An obvious .difference between this case and those cited above — and, it is urged by Taylor-Bell, a controlling one — is the chronology of the two suits. In the cited cases, the customer suits which were enjoined were commenced after the suit between the competing manufacturers, the time gap ranging from four days to seven months. Here the Virginia suit.against the customer preceded the declaratory judgment suit by three weeks. Here, however, the single force of this time priority may be minimized if Taylor-Bell’s warning letters to both Delamere and Woolworth on May 16 •can be viewed as the real beginning of the dispute. These letters were quickly followed by a conference in New York between Delamere’s and Taylor-Bell’s attorneys, and by Delamere’s notice on May 25 to" }, { "docid": "2825189", "title": "", "text": "the establishment of secondary meaning. Accordingly, I believe that the issue of registrability of color per se remains open in an opposition proceeding or in litigation respecting this application or a resulting registration. . Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 161, 195 USPQ 689, 694 (1st Cir.1977) (yellow-colored oval mark; color alone cannot be appropriated as a trademark); Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366, 374 (S.D.N.Y.) (one cannot acquire a trademark by color alone), aff’d, 604 F.2d 200 (2d Cir.1979); Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569, 572, 123 USPQ 372, 375 (2d Cir.1959) (pink medicinal liquid; that a color may become someone’s exclusive property has been rejected by the courts throughout the years), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960); Campbell Soup Co. v. Armour & Co., 175 F.2d 795, 798, 81 USPQ 430, 433 (3d Cir.1949) (no exclusive use of half red and half white labels; one cannot acquire a trademark by color alone); North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 523 (5th Cir.1983) (courts have uniformly rejected sanctioning exclusive rights to product color); Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 480, 181 USPQ 611, 615 (5th Cir.1974) (automobile manufacturer has no rights in color blue per se); Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6, 113 USPQ 493, 495 (6th Cir.1957) (clear that one could acquire no proprietary right in the color or colors used on its packages, as such); Life Savers Corp. v. Curtiss Candy Co., 182 F.2d 4, 9, 85 USPQ 440, 443 (7th Cir.1950) (no exclusive use of multi-colored stripes on packaging; color cannot be monopolized to distinguish a product); Deere & Co. v. Farmhand, Inc., 560 F.Supp. 85 (S.D.Iowa 1982), aff’d, 721 F.2d 253 (8th Cir.1983); Mershon Co. v. Pachmayr, 220 F.2d 879, 883, 105 USPQ 4, 7 (9th Cir.) (white line on green recoil-pad; color alone cannot be protected as a mark), cert. denied, 350 U.S. 885, 76 S.Ct. 139, 100 L.Ed. 780 (1955). . Moreover, there is no" }, { "docid": "2825158", "title": "", "text": "to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not. This is the end to which this bill is directed. S.Rep. No. 1333, 79th Cong., 2d Sess. 4, reprinted in 1946 U.S.Code Cong. & Ad.News 1274, 1275. That a trademark confers no monopoly was settled by the Supreme Court in United Drug Co. v. Rectanus Co., 248 U.S. 90, 97-98, 39 S.Ct. 48, 50-51, 63 L.Ed. 141 (1918): [T]he right to a particular mark grows out of its use, not its mere adoption; its function is simply to designate the goods as the product of a particular trader and to protect his good will against the sale of another’s product as his____ In truth, a trade-mark confers no monopoly whatever in the proper sense, but is merely a convenient means for facilitating the protection of one’s good-will in trade by placing a distinguishing mark or symbol — a commerical signature — upon the merchandise or the package in which it is sold. Ocp’g “pink” color mark performs this role. It gives “the public a reliable indication of source and thus facilitates responsible marketplace competition.” Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821 n. 5, 208 USPQ 713, 717 n. 5 (9th Cir.1980) (Markey, C.J., sitting by designation). We do not share the view expressed by the dissent that OCF, having built product goodwill in its “pink” color mark, must have no recourse but product labeling should another manufacturer color its insulation pink. II. The Board, having established the potential trademark character of the color “pink” for fibrous glass residential insulation, nonetheless refused registration on the ground that OCF had not met its burden of proving “that pink functions as a trademark for that insulation.” In re Owens-Corning Fiberglas Corp., 221 USPQ at 1199. OCF argues that the color “pink” has become distinctive of its insulation by virtue of exclusive and continuous use since 1956, and has acquired a secondary meaning in the marketplace. OCF had taken the position before the" }, { "docid": "8365076", "title": "", "text": "adopting a clear vacuum form package. The new package had some features of Schumi Schapers’ earlier package. Indeed, the new package had certain models who demonstrated the use of the product. The focal point of the new package, as was the old one, and certainly the Styling Stix package, is the contrasting colors of the curlers. DISCUSSION Plaintiff seeks an injunction against defendants, enjoining defendants from distributing or marketing Schumi Schapers in its present package design, and from marketing or importing any type of foam rod shaped curler which is confusingly similar to Styling Stix. Plaintiff seeks an injunction requiring the defendants to recall all of their curlers which have not been distributed to the final consumer. Plaintiff seeks an order prohibiting further advertising of Schumi Schapers. Last, plaintiff seeks damages and requests an accounting of defendants’ profits which resulted from the alleged infringement. Plaintiff requests treble damages and attorney fees pursuant to 15 U.S.C. § 1117. Conversely, defendants request an injunction against plaintiff enjoining defendants from: trading upon the good will of Schumi Schapers; offering for sale, selling or distributing soft flexible foam hair curlers in a multi-colored format in a size and shape identical or deceptively similar to the size and shape of the Schumi Schapers. Further, defendants seek to enjoin plaintiff from directly or indirectly representing or otherwise holding plaintiff out as related to or sponsored by or successor to any interest of Schumi, Ltd. or its affiliates; or in any manner palming off plaintiff’s product as that of defendants. Specifically, defendants seek to prohibit plaintiff from making any reference to a European origin of Styling Stix and from using pictures of the Schumi Schapers in plaintiff's advertising when it is not clearly stated that the product shown is not the product of plaintiff. Defendants additionally seek the destruc tion of plaintiff’s product, packages or promotional material which bear a confusingly similar likeness to the Schumi Schapers product. Last, defendant seeks treble damages and attorney fees pursuant to 15 U.S.C. § 1117. The parties rely principally upon 15 U.S.C. § 1125, Section 43(a) of the Lanham Act" }, { "docid": "2507689", "title": "", "text": "McGOHEY, District Judge. This is one of two related suits in different federal district courts. Each involves the validity and infringement of the same patent for a hair curling device. The instant suit seeks as one item of relief, a judgment declaring the patent invalid and not infringed by Delamere’s device. It was commenced on June 21,1961. The other suit is pending in the Western District of Virginia where it was commenced on June 1, 1961 by Taylor-Bell, a licensee under the patent, against F. W. Woolworth Co., a customer of Delamere, for alleged infringement of the patent and unfair competition. Delamere has moved here, pursuant to Fed.Rules Civ.Proe. Rule 65, 28 U.S.C.A., to enjoin Taylor-Bell from prosecuting its suit in Virginia. Delamere is a Delaware corporation having its principal place of business in New York. Taylor-Bell Co., Inc. is a New York corporation. F. W. Woolworth Co. (Woolworth) is a New York corporation whose executive offices are in New York. On May 16, 1961, Taylor-Bell, through its attorneys, by letter, charged Delamere with patent infringement by reason of the latter’s manufacture and sale of a hair curler sold under the registered trademark “Goody.” By another letter bearing the same date, Taylor-Bell also charged Woolworth with infringement by reason of its retail sale of Delamere’s “Goody” curlers. The letter to Wool worth was addressed to its principal place of business in New York. On May 25, 1961, Delamere’s attorney notified Taylor-Bell’s attorney orally, and on May 29, 1961 by letter, that Delamere would take legal steps to protect itself from Taylor-Bell’s charges. On June 1, 1961, Taylor-Bell instituted suit against Woolworth in the Western District of Virginia seeking temporary and permanent injunctions against Woolworth’s alleged patent infringements and unfair competition, and an accounting of profits in the sale of the alleged infringing “Goody” curlers by Woolworth. The latter, in its answer filed July 7, 1961, denied infringement and unfair competition and, as an affirmative defense, asserted the invalidity of the patent under which Taylor-Bell claimed. On June 21, 1961, Delamere instituted the instant suit seeking: (1) judgment declaring the Taylor-Bell" }, { "docid": "12455324", "title": "", "text": "Prelim.Inj. at 9). Trade dress is “the appearance of the product” and includes such features as “size, shape, color, color combinations, texture, or graphics.” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506 (9th Cir.1987). Indeed, “[t]rade dress is the totality of elements in which a product or service is packaged or presented. These elements combine to create the whole visual image presented to customers.... ” Stephen W. Boney, Inc. v. Boney Services, Inc., 127 F.3d 821, 828 (9th Cir.1997). To recover for trade dress infringement under 15 U.S.C. § 1125, plaintiff has the burden of showing that “its trade dress is protectable and that defendant’s use of the same or similar trade dress is likely to confuse consumers.” Rachel, 831 F.2d at 1506 (quoting Fuddruckers, Inc. v. Doc’s B.R. Others, 826 F.2d 837, 841 (9th Cir.1987)). “Under this analysis, trade dress may be protected if it is nonfunctional and has acquired secondary meaning and if its imitation creates a likelihood of consumer confusion.” Id. (quoting Fuddruckers, 826 F.2d at 842). Plaintiff cannot show that its use of the color pink has acquired secondary meaning. The color pink is used on many products associated with young girls, (see Folkes Decl. ¶ 15), and plaintiff provides no evidence as to how its pink differs from that used on these other products. See Mana Products, Inc. v. Columbia Cosmetics, Mfg., Inc., 65 F.3d 1063, 1071 (2d Cir.1995) (“[T]here are countless numbers of cosmetic companies that sell black compacts”); Brunswick Corp. v. Byitish Seagull Ltd., 35 F.3d 1527 (Fed.Cir.1994) (holding that outboard motor company could not register the color black as its distinctive mark, partly on the grounds that other companies used black on their engines and that such use reflected a “competitive need”), cert. denied, 514 U.S. 1050, 115 S.Ct. 1426, 131 L.Ed.2d 309 (1995). Nor does plaintiff point to any evidence that its use of white lettering on a pink background is unique. Plaintiff argues, however, that it is seeking registration for the word “Barbie” on a field of pink. (See Second Am.Compl., Ex. 28). In its application for trademark registration" }, { "docid": "8365073", "title": "", "text": "Wall Street Journal article on April 4, 1984. 7. Schumi Schaper curlers were originally marketed in a flexible clear “poly bag”. This bag permitted the display of the Schumi Schaper curlers. There were ten Schumi Schaper curlers to a bag. The Schumi Schapers were individually colored red, blue or yellow and were arranged in an alternating pattern so that no two adjacent Schumi Schaper curlers were the same col- or. The curlers were sold in two different sizes, long curlers approximately IOV2 inches in length and short curlers approximately 4V2 inches in length. The two different lengths were sold separately. Each of the packages contained a black and white picture of models demonstrating the use of the Schumi Schapers curlers. 8. In the spring of 1984, plaintiff began experimenting with the idea of manufacturing and/or marketing flexible curlers similar to the Schumi Schapers curlers. 9. In May of 1984 plaintiff’s agent, Mr. Buff, met with defendants Mr. Schumi and Mr. Weisener to discuss the possibility of plaintiff’s agent serving as a distributor and/or manufacturer of the Schumi Schaper curlers under license. 10. In June 1984, another meeting was held between plaintiffs and defendants concerning marketing Schumi Schapers through the plaintiff. 11. Defendants did not establish at the hearing that any confidential or proprietary information was conveyed to plaintiff during the two meetings. 12. During the late spring through the summer of 1984, plaintiff decided to produce and market its own flexible curler. The curler construction was similar to the Schumi Schaper curler. 18. Plaintiff developed a package design which was not unique. The package design included a clear vacuum formed tray which would act as a travel case and holder for the curlers. 14. Plaintiff marketed its curler under the name Styling Stix. The Styling Stix are each a different pastel color. The Styling Stix are enclosed in the clear vacuum package against a black cardboard. The dark background provides sufficient contrast against the pastel colored Styling Stix thus emphasizing the Styling Stix. On the black cardboard which is not covered over by the Styling Stix, are three models which" }, { "docid": "15435512", "title": "", "text": "plaintiff when the latter are prescribed or requested by a physician; and that on the sale of any such products he be required to attach to bottles or containers of a size not made for direct over-the-counter sale, a notice that the contents are not to be sold or dispensed as the product of the plaintiff. Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569 (2 Cir. 1959), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960), although heavily relied on by defendants for its statement “[t]hat a color may become someone’s exclusive property as a perpetual monopoly in connection with a specific product has been rejected by the courts throughout the years”, 271 F.2d at 572, is not of so much assistance to them as they claim. The case dealt with preparations sold in the manufacturers’ bottles over-the-counter. The court held that where defendant’s product differed in name, container shape and label, copying of the pink color of plaintiff’s liquid was not unfair competition in the absence of proof of secondary meaning or “such practices as constitute palming off, actual deception or appropriation of another’s property.” 271 F.2d at 571. The court cited Upjohn Co. v. Schwartz, supra, as an instance of palming off. Id. This brings us to Sears and Compco, supra, 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 and 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669. Their precise holding was that a state may not confer protection under its law of unfair competition against the retail sale of articles which were copied from others manufactured under invalid design patents (in Sears also under an invalid mechanical patent), simply because of confusion or likelihood of confusion. There is no indication that either Stiffel’s lamps or Day-Brite’s reflectors were trademarked, although the lamps bore Stiffel tags and the fixtures of which the reflectors were a part were identified by a catalog number. The Sears lamps were sold at retail without identifying tags (although the cartons containing them were marked) and there was some evidence of actual confusion, 376 U.S. at 226-27," }, { "docid": "793176", "title": "", "text": "v. Adler, 321 F.2d 536 (3d Cir.1963). If the mark, however, is not visible at the time of purchase, can the consumer be confused since the decision to purchase is based upon some aspect other than the mark? Smithkline believes the answer is yes. There is a nexus between secondary meaning and the likelihood of confusion. Recognition and association are the cornerstones of secondary meaning. As more of the populace associates a particular mark with the source of the goods, the more likely it is that confusion may abound if a second identical mark is introduced. “The stronger the evidence of secondary meaning, the stronger the mark, and the more likely is confusion.” Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821 (9th Cir.1980). A brief comparison of the packages the consumer sees at the time of purchase will be helpful in deciding this issue. Plaintiff’s ECOTRIN® tablets are contained in a white non-translucent plastic bottle. The bottle is packaged in a box. The tradename ECOTRIN® is prominently displayed on the box. The “i” in ECOT RIN® is dotted by the orange tablet. The color motif of the box is white, green, and orange. It is a very bright and distinctive package. In addition to the brand name, the phrases “safety-coated aspirin” and “for arthritis pain” appear on the package. The color and copy seen on the package are carried over to the label placed on the bottle. This total image of the ECOTRIN® product is its “trade dress”. Although defendant Pennex manufactures enteric coated aspirin for over 20 private label brands, the partial summary judgment motion involves only two of those brands, Consumer Value Stores (CVS) and AARP Pharmacy Service (AARP). The CVS aspirins are housed in a nontranslucent plastic white bottle which is packaged in a box. The color scheme of the box is primarily white with blue, gold and black lettering. CVS does not use a brandname to market its product. The CVS letters are prominently displayed and the product is referred to as enteric coated aspirin (a generic designation). CVS does not depict" }, { "docid": "2825174", "title": "", "text": "In re Hollywood Brands, Inc., 214 F.2d 139, 141, 102 USPQ 294, 296 (CCPA 1954) (secondary meaning found when one-third of $1,135,000 for advertising over six years was devoted to publicizing the mark; affidavits from consumers not essential); RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1060, 203 USPQ 401, 402 (2d Cir.1979) (court \"properly considered evidence of plaintiffs extensive advertising and sales\"); Ideal Toy Corp. v. Plawner Toy Mfg. Corp., 685 F.2d 78, 82, 216 UPSQ 102, 106 (3d Cir.1982) (\"factors such as length of use, buyer association, extent of sales and advertising” may be considered in testing secondary meaning); In re Duvernoy & Sons, Inc., 212 F.2d 202, 101 USPQ 288 (CCPA 1954) (extensive advertising of \"Consistently Superior” accompanying trade name inadequate to confer trademark status to laudatory statement not relied on to denote origin); 37 C.F.R. § 2.41 (an applicant may submit \"evidence showing duration, extent and nature of use and advertising expenditures ...” to support a claim of distinctiveness). . Distinctiveness is acquired by \"substantially exclusive and continuous use” of the mark in commerce. Levi Strauss & Co. v. Genesco, Inc., 742 F.2d 1401, 1405, 222 USPQ 939, 942 (Fed.Cir.1984). A color which is employed by others in the industry acts not as an indicator of source but as mere ornamentation. See, e.g., Van Brode Milling Co., Inc. v. Cox Air Gauge System, Inc., 279 F.2d 313, 319, 125 USPQ 510, 514 (9th Cir.1960) (red for automotive accessories); Black & Decker Mfg. Co. v. Ever-Ready Appliance Mfg. Co., 518 F.Supp. 607, 617, 213 USPQ 842, 850 (E.D.Mo.1981), aff'd, 684 F.2d 546, 215 USPQ 97 (8th Cir.1982) (almond for kitchen accessories); Delamere Co., Inc. v. Taylor-Bell Co., Inc., 249 F.Supp. 471, 479, 148 USPQ 368, 374 (S.D.N.Y.1966) (pink for cosmetic products). BISSELL, Circuit Judge, dissenting. I respectfully dissent. I I adhere to the view that “the law is well-settled today that the overall color of a product ... cannot be a trade identity designation, nor is it entitled to registration.” 3 R. Callman, The Law of Unfair Competition Trademarks and Monopolies § 18.13 (4th ed." }, { "docid": "2507691", "title": "", "text": "patent invalid; (2) judgment declaring that Delamere is not competing unfairly with Taylor-Bell; (3) injunction restraining Taylor-Bell from suing Delamere or “any distributor, dealer, agent, and any customer of plaintiff and any user of plaintiff’s hair rollers or curlers” for infringement of the patent; and (4) damages for alleged tortious interference with Delamere’s business relations with Woolworth by reason of the warning letter of May 16. Taylor-Bell, in its answer filed July 11, denied Delamere’s claim and asserted counterclaims for patent infringement and unfair competition. The fragmentation of patent litigation is neither novel nor noble. See Rayco Mfg. Co. v. Chicopee Mfg. Corp. On several occasions when a declaratory judgment suit of this sort was followed by an infringement suit in another district by the original defendant against a customer of the first plaintiff, the courts of this circuit have stayed the proceedings against the customer. Remington Products Corp. v. American Aerovap, Inc.; Helene Curtis Industries, Inc. v. Sales Affiliates, Inc.; Telephonies Corp. v. Lindly & Co. It is apparent that many of the same considerations which led to those decisions are also present here. All the corporations here involved have their principal places of business in New York; all witnesses whose testimony would be relevant to \"the issue of validity or infringement are located in or near New York. Woolworth, even to defend the unfair competition aspects of the Virginia suit, would have to rely chiefly on witnesses connected with Delamere, since Woolworth sells the alleged infringing curlers in the packages and with the same labels it receives from Delamere; and it uses promotional materials supplied it by Delamere. Taylor-Bell is represented by Virginia counsel in its suit there, but its New York attorneys are “of counsel” in the Virginia suit. New York further appears to be the natural “theatre” for this “war,” Kerotest Mfg. Co. v. C-O-Two Co., because the warning letters were written by Taylor-Bell’s New York attorneys to the New York offices of Delamere and Woolworth, and the alleged Woolworth infringement, according to the deposition of Taylor-B ell’s president, was discovered by him in New York." }, { "docid": "23242875", "title": "", "text": "copied, the court below permanently enjoined defendant from simulating the pink col- or of Pepto-Bismol in its product Pepsamar and manufacturing and selling such a product. This injunctive direction was immediately qualified by a proviso that it should not apply so long as the pink Pepsamar were sold in blue bottles or bottles of any other color which would “effectively conceal the pink color of the Pepsamar contained therein.” Defendant was also enjoined “from describing its Pepsamar as pink in color, by words or illustrations, in any advertising of Pepsamar or any promotional material * * *.” From this judgment defendant appeals. Distaste for sharp or unethical business practices has often caused the courts to lose sight of the fundamental consideration in the law of unfair competition — protection of the public. Added to this standard is a developing body of law which pertains only to business conduct, namely, that a court of equity will restrain such practices as constitute palming off, actual deception or appropriation of another’s property. Viewed against this background, misunderstanding as to the essential elements of an unfair competition cause of action may well be dissipated. Consumer protection has been limited to the prevention of confusion, i. e., the customer should not mistake defendant’s article for that of plaintiff or believe that it derives from the same source as plaintiff’s goods. It is in such context that secondary meaning inheres, and when this special significance attaches in the public mind to the non-funetional attributes of its wares, a plaintiff need further establish merely the likelihood of confusion — or a defendant may rebut the effect of secondary meaning by proving that confusion is unlikely. Restatement of Torts, Sec. 741 (1938), Lucien Lelong, Inc. v. Lander Co., 2 Cir., 1947, 164 F.2d 395. In cases where the New York courts have occasionally granted relief without proof of secondary meaning, one of the aforementioned predatory practices was established: In Santa’s Workshop, Inc. v. Sterling, 3d Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, it was palming off; in Oneida, Ltd. v. National Silver Co., Sup.Ct.Madison Co.1940, 25 N.Y.S.2d" }, { "docid": "12455325", "title": "", "text": "its use of the color pink has acquired secondary meaning. The color pink is used on many products associated with young girls, (see Folkes Decl. ¶ 15), and plaintiff provides no evidence as to how its pink differs from that used on these other products. See Mana Products, Inc. v. Columbia Cosmetics, Mfg., Inc., 65 F.3d 1063, 1071 (2d Cir.1995) (“[T]here are countless numbers of cosmetic companies that sell black compacts”); Brunswick Corp. v. Byitish Seagull Ltd., 35 F.3d 1527 (Fed.Cir.1994) (holding that outboard motor company could not register the color black as its distinctive mark, partly on the grounds that other companies used black on their engines and that such use reflected a “competitive need”), cert. denied, 514 U.S. 1050, 115 S.Ct. 1426, 131 L.Ed.2d 309 (1995). Nor does plaintiff point to any evidence that its use of white lettering on a pink background is unique. Plaintiff argues, however, that it is seeking registration for the word “Barbie” on a field of pink. (See Second Am.Compl., Ex. 28). In its application for trademark registration with the United States Patent and Trademark Office, plaintiff attaches an image of the word “Barbie” that has “stylized,” slanted white lettering, apparently on a pink background. (Id. at 67, 70). This application, however, specified that plaintiff has used this mark in connection with “dolls, doll clothing and doll accessories.” (Id. at 66). No mention is made of records, music, or CD products. Plaintiff offers no evidence that pink and white lettering has acquired a “secondary meaning” with consumers. Boney, 127 F.3d at 828. Indeed, “a product feature whose only impact is decorative and aesthetic, with no source identifying role, cannot be given exclusive rights under trade dress law.” Id. (quoting 1 McCarthy on Trademarks and Unfair Competition § 8.1). Although the word “Barbie” does denote the doll sold by Mattel, plaintiff has not demonstrated that the combination of pink and white are anything more than decorative colors used by Mattel and many other companies. Even if plaintiff were correct that its pink and white trade dress were unique, significant differences exist between its packaging" }, { "docid": "23242878", "title": "", "text": "will enjoin, on the other. The facts here neatly illustrate application of this rule. Plaintiff, while correctly asserting that proof of secondary meaning is not always a prerequisite to securing relief, must fit its case into one of the remaining categories. This it fails to do. There is no evidence of an attempt or intent to pass off Pepsamar as Pepto-Bismol or to divert plaintiff’s customers by means of deception. Defendant’s finished product is quite dissimilar from that of plaintiff, not only in most of the details, e. g., shape of the bottle, color of the label and appearance of the cap, but also in the overall effect upon the observer. To the prospective purchaser the names on both bottles are in type large enough to be distinguished at a reading distance of over twenty feet. The label covers most of the bottle. Pepto-Bismol’s label is yellow with large red letters; Pepsamar’s is white with even larger blue letters. Indeed, it stretches credulity to imagine a purchaser confusing these disparate articles. Moreover, the essential distinction in this area of the law, overlooked by the court below, is the difference between a deliberate attempt to deceive and a deliberate attempt to compete. Absent confusion, imitation of certain successful features in another’s product is not unlawful and to that extent a “free ride” is permitted. Charles D. Briddell, Inc. v. Alglobe Trading Corporation, 2 Cir., 1952, 194 F.2d 416. Similarly, there is here no violation of plaintiff’s property rights, notwithstanding the fact that defendant investigated and presumably utilized some of the Pepto-Bismol marketing techniques. Such skills cannot be cornered; the competitor must only refrain from using them in such a way that the public is misled. To say that it is unethical for defendant to emphasize pink in its advertising merely begs the question, viz., can the color pink be monopolized in connection with an upset stomach remedy? That a color may become someone’s exclusive property as a perpetual monopoly in connection with a specific product has been rejected by the courts throughout the years (Upjohn Company v. Schwartz, supra, note 5;" }, { "docid": "23158969", "title": "", "text": "think that we are warranted in relying upon the “indeterminate general law.” Maternally Yours, Inc. v. Your Maternity Shop, Inc., supra, at page 540, note 1; American Safety Table Co. v. Schreiber, 2 Cir., 1959, 269 F.2d 255, 271, certiorari denied 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185. The district court held that plaintiff had failed to establish that the appearance of its pitcher had acquired a secondary meaning. To establish a secondary meaning for an article it must be shown that the design is a mark of distinction identifying the source of the article and that purchasers are moved to buy it because of its source. Lucien Lelong v. Lander Co., 2 Cir., 1947, 164 F.2d 395, 397. Plaintiff’s proof fails to meet this test. The letters written by customers to plaintiff contained in Exhibits V-l, 2 and 3 do not establish a secondary meaning for the appearance of the pitchers. The letters, for the most part, are simply orders of caps and spouts to replace those which had been lost, or reorders of the pitchers themselves. Since plaintiff’s name, as the manufacturer, appeared upon the labels, this identified plaintiff as the manufacturing source and reasonably explains why the letters were sent to the plaintiff. Despite the fact that plaintiff’s pitchers have not acquired a secondary meaning, relief might still be granted if plaintiff had established either (1) palming off by defendant, (2) actual deception of purchasers, or (3) a violation by defendant of plaintiff’s property rights. Norwich Pharmacal Co. v. Sterling Drug, Inc., 2 Cir., 1959, 271 F.2d 569, 571, certiorari denied 1960, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739. Here, the record fails to disclose any evidence of palming off or actual deception. Nor has it been shown that defendant violated any of plaintiff’s property rights in the presently recognized unfair competition sense of interference with confidential or contractual relations. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, 271 F.2d at page 572, note 6. A comparison of the labels used by plaintiff and defendant on their pitchers since August 1957 discloses no" }, { "docid": "2825159", "title": "", "text": "it is sold. Ocp’g “pink” color mark performs this role. It gives “the public a reliable indication of source and thus facilitates responsible marketplace competition.” Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821 n. 5, 208 USPQ 713, 717 n. 5 (9th Cir.1980) (Markey, C.J., sitting by designation). We do not share the view expressed by the dissent that OCF, having built product goodwill in its “pink” color mark, must have no recourse but product labeling should another manufacturer color its insulation pink. II. The Board, having established the potential trademark character of the color “pink” for fibrous glass residential insulation, nonetheless refused registration on the ground that OCF had not met its burden of proving “that pink functions as a trademark for that insulation.” In re Owens-Corning Fiberglas Corp., 221 USPQ at 1199. OCF argues that the color “pink” has become distinctive of its insulation by virtue of exclusive and continuous use since 1956, and has acquired a secondary meaning in the marketplace. OCF had taken the position before the examiner and the Board that its mark was registrable under section 2(f) of the Lanham Act (15 U.S.C. § 1052(f)), and had submitted extensive evidence in support of acquired distinctiveness. Section 2(f) provides that “nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of applicant’s goods in commerce”, codifying the common-law doctrine of secondary meaning. The Board rejected this legal theory, stating that a claim of distinctiveness under section 2(f) is inappropriate when the subject matter to be registered is “believed to be mere ornamentation”: The better approach is to refuse registration of a mark believed to be mere ornamentation on the grounds that applicant has not shown that the ornamentation functions as a mark. Evidence similar to the type of evidence that would be submitted under Section 2(f) may make out a convincing showing that the ornamentation functions as a trademark, and the mark can be registered upon such a showing. See In re Paramount Pictures Corp., 213 USPQ 1111, 1114 (note 8) (TTAB" }, { "docid": "12455326", "title": "", "text": "with the United States Patent and Trademark Office, plaintiff attaches an image of the word “Barbie” that has “stylized,” slanted white lettering, apparently on a pink background. (Id. at 67, 70). This application, however, specified that plaintiff has used this mark in connection with “dolls, doll clothing and doll accessories.” (Id. at 66). No mention is made of records, music, or CD products. Plaintiff offers no evidence that pink and white lettering has acquired a “secondary meaning” with consumers. Boney, 127 F.3d at 828. Indeed, “a product feature whose only impact is decorative and aesthetic, with no source identifying role, cannot be given exclusive rights under trade dress law.” Id. (quoting 1 McCarthy on Trademarks and Unfair Competition § 8.1). Although the word “Barbie” does denote the doll sold by Mattel, plaintiff has not demonstrated that the combination of pink and white are anything more than decorative colors used by Mattel and many other companies. Even if plaintiff were correct that its pink and white trade dress were unique, significant differences exist between its packaging and that of the Barbie Girl song to prevent likelihood of confusion, at least as to trade dress. In comparing the packaging of the two products, this Court must consider the “totality of elements” involved in the packaging. Boney, 127 F.3d at 828. Aqua’s album, Aquarium, has a blue, watery background and contains yellow lettering for the eleven songs listed on the back. In big, rounded blue letters the word “Aqua” appears at the top of the CD. None of the song’s lettering is larger than the other, and in fact, pink—BARBIE pink or otherwise— does not appear anywhere on the front or back of the CD case. (Pruetz Decl, Ex. E6). Likewise, the cassette version of the album does not contain any pink lettering. (Id. at Ex. E7). Plaintiffs main complaint appears to be with the CD-single versions of the song. (Id. at E1-E3, E5, E9). However, a review of these packages reveals several significant differences. The eases for these CDs are mostly blue, with a picture of the band on all versions accept" } ]

[ { "docid": "13388850", "title": "", "text": "a change in the Union’s behavior which materially benefits plaintiffs and which was unquestionably a result of this lawsuit. Plaintiffs thus qualify as prevailing parties under § 1988. C. Was the Award of Fees “Reasonable”? The Union claims that even if plaintiffs can be considered prevailing parties, the fee award was unreasonable in light of their allegedly de minimis victory. The Union relies on a line of Supreme Court and Seventh Circuit eases finding that a nominal damage award does not justify attorney’s fees. See generally Farrar, — U.S.-, 113 S.Ct. 566; Maul v. Constan, 23 F.3d 143 (7th Cir.1994). This circuit has adopted the three-part test laid out in the concurring opinion of Justice O’Connor in Farrar to determine whether a prevailing party has achieved a mere technical victory inappropriate for fees. We should “look at the difference between the judgment recovered and the recovery sought, the significance of the legal issue on which the plaintiff prevailed and, finally, the public purpose of the litigation.” Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993) (citing Farrar, — U.S. at-, 113 S.Ct. at 578-79 (O’Connor, J., concurring)). A district court’s analysis of these factors, and its determination as to the appropriateness of a fee award, is afforded “great discretion” and will not be disturbed unless it constitutes an abuse of discretion. Id. Here the district court properly applied the three-part test, and its decision to award a fee was not an abuse of discretion. On the first element, the district court determined that plaintiffs achieved the end goal of the litigation by forcing the Union into compliance with Hudson. The mere fact that this goal was achieved through the Union’s prejudgment decision to amend its practices is unimportant in light of the district court’s conclusion that the Union would not have acted absent the lawsuit. Plaintiffs won a declaratory judgment, and the district court concluded that injunctive relief was unnecessary in light of the Union’s remedial actions. Moreover, damages were never a serious part of this lawsuit, which is reflected in plaintiffs’ prayer for only nominal damages. On the second" } ]

[ { "docid": "1724383", "title": "", "text": "a “prevailing party.” If a suit is settled, the question is complicated: the mere fact that plaintiff obtained some recovery does not automatically make her a prevailing party because defendants often settle even meritless lawsuits. See Hooper v. Demco, Inc., 37 F.3d 287, 292 (7th Cir.1994). Even if plaintiff is a prevailing party, the district court may deny attorney’s fees— on the ground that no amount of fees would be reasonable — if plaintiffs recovery is merely technical or de minimis. Farrar v. Hobby, 506 U.S. 103, 114-16, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992); id. at 116-18, 113 S.Ct. at 576 (O’Connor, J., concurring); Johnson v. Lafayette Fire Fighters Ass’n, 51 F.3d 726, 731 (7th Cir.1995); Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993). We review the district court’s determination of the amount of a reasonable fee for abuse of discretion. Johnson, 51 F.3d at 731. In the instant case, the court held that plaintiff was a prevailing party, but denied fees because the recovery was only technical or de minimis. As explained below, we think the district court erred on both counts. However, because we hold that plaintiff was not a prevailing party, we affirm the district court’s denial of attorney’s fees. This circuit has adopted a three-factor test to determine if relief is merely technical or de minimis: 1) the difference between the judgment recovered and the recovery sought; 2) the significance of the legal issue on which the plaintiff prevailed; and, 3) the public purpose served by the litigation. Johnson, 51 F.3d at 731; Cartwright, 7 F.3d at 109. The district court neither analyzed nor made any findings with regard to these factors. Consequently, the district court’s findings do not support the conclusion that plaintiffs relief was only technical or de minimis. However, despite the district court’s failure to apply the proper test to make this determination, we need not remand the case. A remand is not warranted where, as here, it would only “foster a new round of attorneys’ fees litigation which we can readily avoid by simply deciding the issue here.” Cartwright," }, { "docid": "8394030", "title": "", "text": "usually no fee at all.” Id. (internal citations omitted). In Justice O’Connor’s concurrence in Farrar v. Hobby, she stated that in nominal-award situations, it would be wasteful to require a district court to go through the normal analysis and calculation in determining an award, because “common sense and sound judicial administration” would allow the court to simply “explain why the victory is de minimis and announce a sensible decision to award low fees or no fees at all.” Id. at 117-18, 113 S.Ct. at 576 (O’Connor, J. concurring) (internal quotations omitted). The Fourth Circuit Court of Appeals, however, has used the three factors Justice O’Connor outlined in that opinion to “separate the usual nominal-damage ease, which warrants no fee award, from the unusual case that does warrant an award of attorney’s fees.” Mercer v. Duke Univ., 401 F.3d 199, 204 (4th Cir.2005). Those three factors are (1) “ ‘the extent of relief (2) “ ‘the significance of the legal issue on which the plaintiff prevailed;’ ” and (3) “ ‘the public purpose served’ by the litigation.” Id. (quoting Farrar, 506 U.S. at 122, 113 S.Ct. at 579 (O’Connor, J. concurring)). The first factor requires a comparison between the amount awarded and the amount sought. Id. While the subjective goals of the plaintiff are irrelevant to this inquiry, the purpose of the lawsuit should be considered, specifically whether the plaintiff sought money damages or injunc-tive relief. Id. at 205. A court should consider what the plaintiff was actually seeking, not what was “most important.” Id. The second factor “is concerned with the general legal importance of the issue on which the plaintiff prevailed.” Id. at 206. In Mercer v. Duke University, for example, a case in which the Fourth Circuit found that nominal damages were not a de minimis victory, the plaintiffs case established a new point of law. Id. The third factor looks to “whether the litigation served a public purpose, as opposed to simply vindicating the plaintiffs individual rights.” Id. at 207. Here, Plaintiff has been awarded nominal damages, thus qualifying her as a “prevailing party.” However, application of" }, { "docid": "9584967", "title": "", "text": "to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. (citation omitted). Justice O’Connor concurred in the opinion but wrote separately to explain why she be lieved the denial of fees was appropriate. She wrote that “when a plaintiffs victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney’s fees.... Instead, it is enough for a court to explain why the victory is de minimis and announce a sensible decision to ‘award low fees or no fees’ at all.” Id. at -, 113 S.Ct. at 576 (O’Connor, J., concurring). Justice O’Connor suggested that there are three factors courts should consider when determining whether a victory is de minimis or otherwise strictly technical: first, the difference between the judgment recovered and the recovery sought; second, the significance of the legal issue on which the plaintiff prevailed; and third, the public purpose served by the litigation. Id. at -, 113 S.Ct. at 578-79. In their responsive briefs, the parties recast their arguments in the light of Farrar. The defendant dropped her argument that the plaintiffs were not entitled to attorneys’ fees because they were not prevailing parties, and instead focussed on the argument that the attorneys’ fee award was unreasonable. She now argues that the plaintiffs’ nominal damage award is de minimis given that they were seeking substantial compensatory and punitive damages. The plaintiffs took a more defensive tack and argued that the victory was not de minimis. They continued to urge, moreover, that the one-third reduction was an abuse of discretion and that they are entitled to a larger fee award. The issue, then, is whether the plaintiffs’ victory is de minimis so that the only reasonable attorneys’ fee is no fee or a substantially reduced fee. Obviously, if the victory is deemed to be de minimis, the plaintiffs’ argument that the district court abused its discretion in not awarding more fees is moot. At the outset, we recognize that determining whether a victory is de minimis for" }, { "docid": "23620943", "title": "", "text": "discretion of a district court to require each party to bear its own costs.”); Testa v. Village of Mundelein, 89 F.3d 443, 447 (7th Cir.1996) (“Considering the mixed outcome of the civil rights and malicious prosecution claims, the decision requiring each party to bear its own costs is within that discretion.”). “[WJhere the court exercises its discretion^] the identification of the prevailing party may [in the end] become so unimportant as to be almost immaterial.” Roberts, 921 F.2d at 1058 (internal quotation marks omitted). V. CONCLUSION Accordingly, we AFFIRM the judgment of the magistrate judge with respect to the nominal damages award but VACATE and REMAND with respect to the attorney’s fee award and the award of costs. . A supervisor attempted to fire Mr. Barber because of these attendance problems but Mr. Barber was not discharged at that time. He was terminated a year later when a co-worker complained that he had violated a safety code. . Technically, we read Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir.1997)-in which this court (following oilier circuits) adopted the O'Connor Farrar factors, see note 4, infra — and Gudenkauf and Brandan to establish the following procedure. First, under the relevant civil rights statutes, a court determines whether an award of fees should be made. Second, the court determines what amount would constitute a reasonable fee. In certain circumstances, that is, when an evaluation of the O’Connor factors reveals that \"the plaintiff’s success is purely technical or de minimis,” no fee should be awarded. Farrar, 506 U.S. at 117, 113 S.Ct. 566 (O'Connor, J., concurring). Not to put too fine a point on it, the court must also remember Justice O’Connor's admonition that \"[njominal relief does not necessarily a nominal victory make.” Id. at 121, 113 S.Ct. 566 (O’Connor, J., concurring). . Some of our sister circuits invoke the O'Connor factors explicitly. See, e.g., Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir.1994) (applying the three O'Connor factors to the case); Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993) (same). Others do so implicitly. See, e.g., Hidden Oaks Ltd. v. City" }, { "docid": "23002371", "title": "", "text": "that ambiguities in a contract be construed against the drafter. See WH Smith Hotel Services, Inc. v. Wendy’s Int’l, Inc., 25 F.3d 422, 429 (7th Cir.1994) (under well-settled law, ambiguous contracts are construed against their drafters). The defendant is always free to offer a lump sum in settlement of liability, costs and fees, but that is not what Dick James did here. Dick James’ offer was silent as to fees and costs, and under these circumstances, the court may then award an additional amount to cover costs and fees. IV. Dick James also contends that Webb is not entitled to attorney’s fees because his recovery was de minimis in comparison to the amount of damages he sought in his complaint. Defendants alternatively quibble with the amount of attorney’s fees awarded to Webb because Webb had a contingency fee agreement with his attorneys, and because the fees are disproportionate to the recovery achieved. We have examined Dick James’ arguments in regard to the award of fees and find them without merit. Webb’s recovery was neither de minimis nor disproportionate to the recovery, achieved. See Lenard v. Argento, 808 F.2d 1242, 1247 (7th Cir.1987) (contingent fee. contract not conclusive evidence of reasonable fee because plaintiffs attorney may not have been willing to take on the case except for the hope of an additional award pursuant to statute); Fisher v. Kelly, 105 F.3d 350, 353 (7th Cir.1997) (a party prevails where the lawsuit is causally linked to the relief obtained and where defendant has not acted gratuitously in settling (as in the case of a frivolous, unreasonable or groundless suit)). Furthermore, the district court carefully considered the amount of fees awarded, and we have no reason to find it abused its discretion in determining that amount. Because the district court was justified in awarding fees and in awarding them in the amount it determined proper, we affirm the judgment in every respect. Affirmed." }, { "docid": "9584966", "title": "", "text": "alleging that Texas officials had illegally closed the school the plaintiffs operated. The district court awarded them nominal damages and, pursuant to a petition for $248,362.50 in attorneys’ fees, awarded the plaintiffs $280,000. On appeal, the Fifth Circuit reversed holding that the plaintiffs were not prevailing parties entitled to fees under § 1988. The Court granted certiorari arid held that a civil rights plaintiff recovering only nominal damages is nonetheless a prevailing party under § 1988. The Court, however, went on to hold that the plaintiffs, though prevailing parties, were not entitled to the fees awarded by the district court. Justice Thomas, writing for himself and four other Justices, held that “[i]n some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney’s fees at all.” Id. at-, 113 S.Ct. at 575. The Court held that, before conducting the lodestar analysis, a district court faced with a petition for attorneys’ fees should consider the extent of success of the litigation. “When the plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. (citation omitted). Justice O’Connor concurred in the opinion but wrote separately to explain why she be lieved the denial of fees was appropriate. She wrote that “when a plaintiffs victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney’s fees.... Instead, it is enough for a court to explain why the victory is de minimis and announce a sensible decision to ‘award low fees or no fees’ at all.” Id. at -, 113 S.Ct. at 576 (O’Connor, J., concurring). Justice O’Connor suggested that there are three factors courts should consider when determining whether a victory is de minimis or otherwise strictly technical: first, the difference between the judgment recovered and the recovery sought; second, the significance of the legal issue on which the plaintiff prevailed; and third, the public purpose served by the litigation. Id. at -, 113 S.Ct. at 578-79. In" }, { "docid": "1724382", "title": "", "text": "and attorney’s fees. The district court granted $120 in costs, but denied attorney’s fees. The court noted that attorney’s fees were available under 42 U.S.C. § 1988 because “Fisher is technically a prevailing party.” However, it held that no amount of fees was reasonable because Fisher’s victory was only “technical or de minim-is.” The court based its holding on the fact that Kelly settled the ease merely for its “nuisance value.” Fisher now appeals the denial of attorney’s fees. II. Officer Kelly’s Rule 68 offer of judgment specifically included “costs.” When the term “costs” is used in an offer of judgment, it is read to include all costs awardable under the relevant substantive statute, in this case 42 U.S.C. § 1988. Marek v. Chesny, 473 U.S. 1, 7-9, 105 S.Ct. 3012, 3016, 87 L.Ed.2d 1 (1985). Under 42 U.S.C. § 1988(b), costs include attorney’s fees, provided that plaintiff is a prevailing party. Before addressing what a reasonable fee would be, the court must first determine if attorney’s fees are available by deciding whether plaintiff is a “prevailing party.” If a suit is settled, the question is complicated: the mere fact that plaintiff obtained some recovery does not automatically make her a prevailing party because defendants often settle even meritless lawsuits. See Hooper v. Demco, Inc., 37 F.3d 287, 292 (7th Cir.1994). Even if plaintiff is a prevailing party, the district court may deny attorney’s fees— on the ground that no amount of fees would be reasonable — if plaintiffs recovery is merely technical or de minimis. Farrar v. Hobby, 506 U.S. 103, 114-16, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992); id. at 116-18, 113 S.Ct. at 576 (O’Connor, J., concurring); Johnson v. Lafayette Fire Fighters Ass’n, 51 F.3d 726, 731 (7th Cir.1995); Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993). We review the district court’s determination of the amount of a reasonable fee for abuse of discretion. Johnson, 51 F.3d at 731. In the instant case, the court held that plaintiff was a prevailing party, but denied fees because the recovery was only technical or de minimis. As" }, { "docid": "6108616", "title": "", "text": "party....” (emphasis added)). Duke contends that, in view of Mercer’s very limited degree of success, the only reasonable award is an award of no fees at all. Mercer, however, argues that fee awards are appropriate in some nominal-damage award cases even after Farrar and that the award was justified in this case. Mercer contends her case was an important one that will provide guidance to schools nationwide and that the public purpose served by her case makes the district court’s fee award reasonable. A. Because the Court in Farrar held that plaintiffs recovering only nominal damages usually or often will not be entitled to an award of attorney’s fees, it is clear that such plaintiffs will at least sometimes be entitled to a fee award. Our cases have recognized as much. See Clark v. Sims, 28 F.3d 420, 424-25 (4th Cir.1994) (remanding for district court to consider attorney’s fee request by plaintiff who was awarded only nominal damages); see also Mercer II, 50 Fed.Appx. at 645. Although the majority opinion in Farrar provides little guidance for courts considering whether an award of attorney’s fees is warranted, Justice O’Connor in a separate concurring opinion addressed the question in more detail. According to Justice O’Connor, “[w]hen the plaintiffs success is purely technical or de minimis, no fees can be awarded. Such a plaintiff has either failed to achieve victory at all, or has obtained only a Pyrrhic victory for which the reasonable fee is zero.” Farrar, 506 U.S. at 117, 113 S.Ct. 566 (O’Connor, J., concurring). Justice O’Connor recognized, however, that not “all nominal dam ages awards are de minimis. Nominal relief does not necessarily a nominal victory make.” Id. at 121, 113 S.Ct. 566. She suggested that when determining whether attorney’s fees are warranted in a nominal-damages case, courts should consider “the extent of relief, the significance of the legal issue on which the plaintiff prevailed, and the public purpose served” by the litigation. Id. at 122. Several circuits have applied the factors identified by Justice O’Connor when considering whether a plaintiff who received nominal damages is nonetheless entitled to an" }, { "docid": "8394029", "title": "", "text": "a prevailing party, a court must then decide whether considerations of proportionality warrant the award of a fee. Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1335 (4th Cir.1996). If the victory is technical or de minimis, this is relevant to the reasonableness of the fee awarded. Farrar, 506 U.S. at 114, 113 S.Ct. at 574. “Indeed, the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” Id. (internal quotations omitted). In considering the reasonableness of a fee request, a district court must give “primary consideration to the amount of damages awarded as compared to the amount sought.” Id. at 114, 113 S.Ct. at 575. Often, a plaintiff who sought compensatory damages and is awarded only nominal damages is one who formally “prevails,” but who should receive no attorney’s fee award. Id. at 115, 113 S.Ct. at 575. When the recovery of nominal damages is caused by the plaintiffs “failure to prove an essential element of [her] claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. (internal citations omitted). In Justice O’Connor’s concurrence in Farrar v. Hobby, she stated that in nominal-award situations, it would be wasteful to require a district court to go through the normal analysis and calculation in determining an award, because “common sense and sound judicial administration” would allow the court to simply “explain why the victory is de minimis and announce a sensible decision to award low fees or no fees at all.” Id. at 117-18, 113 S.Ct. at 576 (O’Connor, J. concurring) (internal quotations omitted). The Fourth Circuit Court of Appeals, however, has used the three factors Justice O’Connor outlined in that opinion to “separate the usual nominal-damage ease, which warrants no fee award, from the unusual case that does warrant an award of attorney’s fees.” Mercer v. Duke Univ., 401 F.3d 199, 204 (4th Cir.2005). Those three factors are (1) “ ‘the extent of relief (2) “ ‘the significance of the legal issue on which the plaintiff prevailed;’ ” and (3) “ ‘the public purpose served’ by the" }, { "docid": "6901587", "title": "", "text": "about to proceed to trial. This case differs in that respect from Fisher, where the parties had not proceeded to summary judgment and the defendant made an offer of judgment that plaintiff accepted. Id. The court found that the defendant had settled the case fairly early in the litigation without regard to the merits of the case. Id. The settlement here occurred after defendant filed a motion for summary judgment and the court ruled that the issue of retaliatory discharge would proceed to trial. In that sense, the settlement here was not gratuitous on defendant’s part even though it was calculated to avoid additional litigation fees — all settlements are. Even if a party prevails, the relief obtained may be technical or de minimis to the extent that attorneys’ fees are unwarranted. To determine if this is so, the Seventh Circuit has set out a three-factor test that requires the court to consider: 1) the difference between the judgment recovered and the recovery sought; 2) the significance of the legal issue on which plaintiff prevailed; and 3) the public purpose served by the litigation. Johnson v. Lafayette Fire Fighters Assn., 51 F.3d 726, 731 (7th Cir.1995). The “most critical factor” is the difference between the recovery sought and the award. See Farrar, 506 U.S. at 113 (award of $1 where plaintiffs requested $17 million). In her complaint, plaintiff requested compensatory damages of $30,000, reinstatement and attorneys’ fees. Her pretrial memorandum also contained a $10,000 punitive damages demand. Compared to this demand, a $10,- 000 settlement is, according to defendant, de minimis. Defendant points out that it denied liability, it did not change its relationship with plaintiff, she was not reinstated and the company did not amend any company policy as a result of plaintiffs allegations or complaint. Neither party presented new legal theories in this case, making the public purpose served by the lawsuit minimal. Plaintiff responds to defendant’s criticisms by pointing out that although the settlement amount was $10,000, the parties also agreed that this amount did not include attorneys’ fees, which the parties would litigate. Although the settlement" }, { "docid": "6114783", "title": "", "text": "as an admission of liability. The district court denied the plaintiff’s subsequent motion for attorney’s fees finding that Fisher’s victory was “technical or de minim-is” because the matter was settled for nuisance value. The Seventh Circuit affirmed, noting that the plaintiff was not a prevailing part because the settlement was for nuisance value, and, in addition, the offer of judgment disclaimed any liability. This case is distinguishable from Fisher in several respects. Initially, the Court has already determined that the amount of the settlement in this case was not de minimis. Further, unlike the facts in Fisher, the $14,000 figure contained in the offer of judgment was not accepted after a higher settlement offer was rejected. Finally, the Court notes that the mere fact that the offer of judgment contained a disclaimer of liability will not necessarily insulate the School District against a motion for attorney’s fees. For example, in Stefan v. Lau-renitis, 889 F.2d 363 (1st Cir.1989) the First Circuit was confronted with an offer of judgment containing a disclaimer similar to that in Fisher and in this case. Notwithstanding the express denial of liability, the court looked to the totality of the circumstances and determined that the plaintiff’s fee application was appropriate. Id. at 369. This Court follows the rationale in Stefan and determines that Foster is entitled to an award of attorney’s fees. D. The fee award The plaintiff moves for an award of $14,070 in attorney’s fees and $1,533.55 in costs for expenses and costs incurred prior to the service of the offer of judgment, and an additional sum of $2,985 in fees for expenses incurred as a result of litigating this motion. The attorney’s fee application represents a total of 113.7 hours of legal work at a rate of $150 per hour. The School District challenges both, the hourly rate and the time spent as excessive. The Court will treat each of these issues separately. 1. Lodestar amount The amount of an attorney’s fee in a civil case is determined by the “lodestar” method. See Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939," }, { "docid": "20669181", "title": "", "text": "private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.” S.Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910. In view of this clearly expressed congressional intent, our circuit has recognized that the “district court’s discretion to deny fees to a prevailing party is quite narrow.” Wilson, 819 F.2d at 951 (citing J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985)) (“[T]here are few cases denying attorney fees to a prevailing party as unjust under § 1988,” and “[a] strong showing of special circumstances is necessary to support a denial.”). In analyzing whether a plaintiffs victory is purely technical or de mininis, we look for guidance to Justice O’Connor’s concurrence in Farrar which distills various principles from the Court’s § 1988 case law into a three-part test to determine whether a prevailing party achieved enough success to be entitled to an award of attorney’s fees. The “relevant indicia of success” in such cases are: (1) the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose of the litigation. 506 U.S. at 121-22, 113 S.Ct. at 578-79 (O’Connor, J., concurring). See Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996) (adopting Justice O’Connor’s three-part approach to evaluate whether a plaintiffs victory was merely technical or de mininis); Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir.1994) (same); Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993) (same). The first and “ ‘most critical factor’ in determining the reasonableness of a fee award is ‘the degree of success obtained.’ ” Farrar, 506 U.S. at 114, 113 S.Ct. at 574 (quoting Hensley, 461 U.S. at 436, 103 S.Ct. at 1941). The plaintiffs in this case sought injunctive and declaratory relief with regard to their underlying state court prosecutions and three state statutes. Although, as the district court points out, the plaintiffs did not succeed on their “primary” bad faith claim, they did obtain" }, { "docid": "20669182", "title": "", "text": "the difference between the judgment recovered and the recovery sought; (2) the significance of the legal issue on which the plaintiff prevailed; and (3) the public purpose of the litigation. 506 U.S. at 121-22, 113 S.Ct. at 578-79 (O’Connor, J., concurring). See Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996) (adopting Justice O’Connor’s three-part approach to evaluate whether a plaintiffs victory was merely technical or de mininis); Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir.1994) (same); Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993) (same). The first and “ ‘most critical factor’ in determining the reasonableness of a fee award is ‘the degree of success obtained.’ ” Farrar, 506 U.S. at 114, 113 S.Ct. at 574 (quoting Hensley, 461 U.S. at 436, 103 S.Ct. at 1941). The plaintiffs in this case sought injunctive and declaratory relief with regard to their underlying state court prosecutions and three state statutes. Although, as the district court points out, the plaintiffs did not succeed on their “primary” bad faith claim, they did obtain a declaratory judgment overturning the Kansas Funeral Picketing Act as unconstitutionally vague. That the plaintiffs prevailed on only one of their four underlying claims itself does not diminish the reasonableness of awarding some attorney’s fees commensurate with their legal efforts in bringing that claim. See Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir.1995) (holding that plaintiffs’ success on two of then-eight challenges to the Utah’s Abortion Act resulted in success sufficient to award attorney’s fees based upon a qualitative assessment of the relative importance of plaintiffs’ successes and failures). Accordingly, this factor does not weigh in favor of characterizing the plaintiffs’ victory as merely technical or de mininis. The second factor in the Farrar calculus goes beyond the actual relief awarded to examine the extent to which the plaintiffs succeeded on their theory of liability. See 506 U.S. at 121, 113 S.Ct. at 578 (O’Connor, J. concurring). In the underlying action, the plaintiffs sought declaratory relief invalidating the Kansas Funeral Picketing Act on its face and as applied to them. The district court" }, { "docid": "22417964", "title": "", "text": "award were nominal, the Farrar exception would not be applicable here. Whether the plaintiffs “success is purely technical or de minimis,” id. at 117, 113 S.Ct. at 576 (O’Con-nor, J., concurring), is determined by examining other factors in addition to the amount of money damages awarded. Primary among such other considerations is “the significance of the legal issues on which the plaintiff claims to have prevailed” and the “public purpose” the plaintiffs litigation served. Id. In her concurring opinion, Justice O’Connor makes it clear that not all nominal damages awards are de minimis. Farrar, 506 U.S. at 121, 113 S.Ct. at 578 (“Nominal relief does not necessarily a nominal victory make.”). Moreover, her opinion emphasizes that, although “a substantial dif-ferenee between the judgment recovered and the recovery sought” may suggest that the plaintiffs victory is purely technical, “[t]he difference between the amount recovered and the damages sought is not the only consideration.” Id. “An award of nominal damages can represent a victory in the sense of vindicating rights even though no actual damages are proved.” Id. As we explain later, Morales achieved a significant nonmon-etary result not only for himself but for the community in general. III. The customary method of determining fees, which the district court should have used here, is known as the lodestar method. “The lodestar determination has emerged as the predominate element of the analysis” in determining a reasonable attorney’s fee award. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987). The “lodestar” is calculated by multiplying the number. of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate. McGrath v. County of Nevada, 67 F.3d 248, 252 (9th Cir.1995). After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr factors that are not already subsumed in the initial lodestar calculation. Id.; Cunningham v. County of Los Angeles, 879 F.2d 481, 487 (9th Cir.1988), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990). That is the procedure the district court was" }, { "docid": "1724384", "title": "", "text": "explained below, we think the district court erred on both counts. However, because we hold that plaintiff was not a prevailing party, we affirm the district court’s denial of attorney’s fees. This circuit has adopted a three-factor test to determine if relief is merely technical or de minimis: 1) the difference between the judgment recovered and the recovery sought; 2) the significance of the legal issue on which the plaintiff prevailed; and, 3) the public purpose served by the litigation. Johnson, 51 F.3d at 731; Cartwright, 7 F.3d at 109. The district court neither analyzed nor made any findings with regard to these factors. Consequently, the district court’s findings do not support the conclusion that plaintiffs relief was only technical or de minimis. However, despite the district court’s failure to apply the proper test to make this determination, we need not remand the case. A remand is not warranted where, as here, it would only “foster a new round of attorneys’ fees litigation which we can readily avoid by simply deciding the issue here.” Cartwright, 7 F.3d at 109. In the instant case, the district court’s findings support the denial of attorney’s fees on another ground: that plaintiff was not a prevailing party. The district court’s findings support the conclusion that plaintiff was not, in fact, a prevailing party. The crux of whether a party has prevailed for purposes of awarding attorney’s fees is whether the party achieved success on the merits. Farrar, 506 U.S. at 109-11, 113 S.Ct. at 572. In other words, the party must have both received some kind of relief which changes the legal relationship between the parties, id. at 109-12, 113 S.Ct. at 572-73, and that relief must have been obtained because of the potential merit of plaintiffs position. Hill v. Richardson, 7 F.3d 656, 658 (7th Cir.1993). This law has been encapsulated in a two-part test for determining prevailing party status when a case has settled: 1) whether the lawsuit was “causally linked to the relief obtained,” Gekas v. Attorney Registration and Disciplinary Comm’n, 793 F.2d 846, 849 (7th Cir.1986); and, 2) whether the" }, { "docid": "7577855", "title": "", "text": "parameters in Phelps. See Phelps, 120 F.3d at 1131. Additionally, in accordance with Justice White’s observation in Fmrar, we emphasized that the application of the O’Connor factors did not undermine the general rule that prevailing parties should recover attorney’s fees “ ‘unless special circumstances would render such an award unjust.’” Id. (quoting Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)). In this case, the district court applied precisely the analysis we adopted in Phelps. Analyzing the degree of success obtained, the first factor under Farrar, the court found that, despite Plaintiffs limited monetary recovery, her victory was not merely technical or de minimis; instead, the jury’s “verdict vindicated the violation of her civil rights.” Appellant’s App. at 80. The court determined that the difference between the judgment recovered and the recovery sought was significantly distinct from the corresponding difference in Farrar: Plaintiffs claims for damages were not extravagant-she sought only back pay for twenty-one months and $50,000 in non-economic damages-while Mr. Farrar sought damages of $17 million. The court also relied on the fact that, unlike Mr. Farrar’s litigation which was drawn out over ten years and two appeals, Plaintiffs litigation was not protracted. Citing this court’s decision in Koopman v. Water District No. 1, 41 F.3d 1417, 1421 (10th Cir.1994), the court determined that Plaintiffs nominal damage award did not preclude an award of fees. With respect to the second Farrar factor, the significance of the legal issue on which the plaintiff prevailed, the district court determined that Plaintiff succeeded on her primary claim, sexual harassment. See Appellant’s App. at 81. Therefore, although she lost her retaliation and constructive discharge claims, Plaintiff “succeeded on a ‘significant issue in litigation which achieves some of the benefit [she] sought in bringing suit.’ ” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Finally, in examining the third factor, the public purpose served by the plaintiffs success, the district court weighed whether “the judgment deters future lawless conduct as opposed to merely ‘occupying the time and energy" }, { "docid": "6901586", "title": "", "text": "a plaintiff who settles her case is indeed a prevailing party, the Seventh Circuit has developed a two-part test: “1) whether the lawsuit was causally linked to the relief obtained, and 2) whether the defendant acted gratuitously, that is, the lawsuit was frivolous, unreasonable or groundless.” Fisher v. Kelly, 105 F.3d 350, 353 (internal citations and quotes omitted). In support of its contention that plaintiff is not a prevailing party, defendant argues that the settlement she ultimately received was so far below her demand for damages that it is clear that she did not succeed on the merits of her claim. Defendant claims that the $10,000 it paid plaintiff in settlement was no more than the nuisance value of the ease. The cost of settlement was simply less than that of trial and post-trial motions, which defendant estimated at more than $25,000, making settlement “gratuitous” on its part. Fisher, 105 F.3d at 353. However, plaintiff responds that her retaliation claim survived the court’s ruling on defendant’s motion for summary judgment and that the case was about to proceed to trial. This case differs in that respect from Fisher, where the parties had not proceeded to summary judgment and the defendant made an offer of judgment that plaintiff accepted. Id. The court found that the defendant had settled the case fairly early in the litigation without regard to the merits of the case. Id. The settlement here occurred after defendant filed a motion for summary judgment and the court ruled that the issue of retaliatory discharge would proceed to trial. In that sense, the settlement here was not gratuitous on defendant’s part even though it was calculated to avoid additional litigation fees — all settlements are. Even if a party prevails, the relief obtained may be technical or de minimis to the extent that attorneys’ fees are unwarranted. To determine if this is so, the Seventh Circuit has set out a three-factor test that requires the court to consider: 1) the difference between the judgment recovered and the recovery sought; 2) the significance of the legal issue on which plaintiff prevailed;" }, { "docid": "23620944", "title": "", "text": "circuits) adopted the O'Connor Farrar factors, see note 4, infra — and Gudenkauf and Brandan to establish the following procedure. First, under the relevant civil rights statutes, a court determines whether an award of fees should be made. Second, the court determines what amount would constitute a reasonable fee. In certain circumstances, that is, when an evaluation of the O’Connor factors reveals that \"the plaintiff’s success is purely technical or de minimis,” no fee should be awarded. Farrar, 506 U.S. at 117, 113 S.Ct. 566 (O'Connor, J., concurring). Not to put too fine a point on it, the court must also remember Justice O’Connor's admonition that \"[njominal relief does not necessarily a nominal victory make.” Id. at 121, 113 S.Ct. 566 (O’Connor, J., concurring). . Some of our sister circuits invoke the O'Connor factors explicitly. See, e.g., Jones v. Lockhart, 29 F.3d 422, 423-24 (8th Cir.1994) (applying the three O'Connor factors to the case); Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993) (same). Others do so implicitly. See, e.g., Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052 (5th Cir.1998) (noting that the plaintiffs \"victory produced no 'public benefit' justifying an award of fees in spite of receiving only nominal damages”); O'Connor v. Huard, 117 F.3d 12, 17-18 (1st Cir.1997) (noting that the plaintiff's victory was not de minimis because, among other things, it provided an incentive to attorneys to represent civil rights litigants such as the plaintiff and it served as a deterrent to future abuses); Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1336 (4th Cir.1996) (noting that a fee recoveiy might be justified if the plaintiff's suit served a public purpose); Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.1994) (noting that the fee award was justified because the plaintiffs prevailed on a significant legal issue and because the litigation served a public purpose). . However, in another Seventh Circuit case, the second factor was defined differently. See Cartwiight, 7 F.3d at 110 (characterizing the second factor as looking “not at the relief obtained but to the extent the plaintiff[ ] succeeded on" }, { "docid": "6114782", "title": "", "text": "433-34, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983); Lunday v. City of Albany, 42 F.3d 131, 134-35 (2d Cir.1994); Cowan v. Prudential Ins. Co., 935 F.2d 522, 525-26 (2d Cir. 1991). Accordingly, where a civil rights litigant in good faith raises alternative grounds for a desired outcome, “the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee.” Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; Val-monte v. Bane, 895 F.Supp. 593, 600 (S.D.N.Y.1995). As a result, the Court declines to apply this argument to defeat Foster’s prevailing party status or to reduce his fees. In making this determination, the Court considered the case of Fisher v. Kelly, 105 F.3d 350 (7th Cir.1997) cited by the School District. In Fisher, during a pretrial conference, the plaintiff rejected a settlement offer of $10,000. A week later she accepted an offer of judgment in the amount of $7,500. The offer of judgment, similar to the one at issue, stated that nothing in the offer should be take as an admission of liability. The district court denied the plaintiff’s subsequent motion for attorney’s fees finding that Fisher’s victory was “technical or de minim-is” because the matter was settled for nuisance value. The Seventh Circuit affirmed, noting that the plaintiff was not a prevailing part because the settlement was for nuisance value, and, in addition, the offer of judgment disclaimed any liability. This case is distinguishable from Fisher in several respects. Initially, the Court has already determined that the amount of the settlement in this case was not de minimis. Further, unlike the facts in Fisher, the $14,000 figure contained in the offer of judgment was not accepted after a higher settlement offer was rejected. Finally, the Court notes that the mere fact that the offer of judgment contained a disclaimer of liability will not necessarily insulate the School District against a motion for attorney’s fees. For example, in Stefan v. Lau-renitis, 889 F.2d 363 (1st Cir.1989) the First Circuit was confronted with an offer of judgment containing a disclaimer similar to that in" }, { "docid": "22417971", "title": "", "text": "cert. denied, - U.S. -, 116 S.Ct. 379, 133 L.Ed.2d 303 (1995); Wilcox, 42 F.3d at 554 (plaintiff obtained judgment of one dollar); Forrester v. San Diego, 25 F.3d 804, 809 (9th Cir.1994) (plaintiffs did not procure relief), cert. denied, - U.S. -, 115 S.Ct. 1104, 130 L.Ed.2d 1070 (1995); Wilks v. Reyes, 5 F.3d 412, 417 (9th Cir.1993) (plaintiff awarded one dollar in nominal damages). . The analysis outlined above parallels the approach adopted by at least two other circuits which have addressed the same issue. For example, the Seventh Circuit has expressly adopted a three-part test, derived directly from Justice O’Connor’s Farrar concurrence, for determining “whether a prevailing party has achieved a mere technical victory inappropriate for fees.” Johnson v. Lafayette Fire Fighters Ass’n Loc. 472, 51 F.3d 726 (7th Cir.1995) (citing Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir.1993)). See also Jones v. Lockhart, 29 F.3d 422, 423-424 (8th Cir.1994); A.J. by L.B. v. Kierst, 56 F.3d 849, 863 (8th Cir.1995); Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir.1995). . The twelve Kerr factors bearing on the reasonableness are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the \"undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases. Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). There is a strong presumption that the lodestar figure represents a reasonable fee. \"Only in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Harris v. Marhoefer, 24 F.3d 16, 18 (1994);" } ]

[ { "docid": "22295799", "title": "", "text": "moral turpitude under INA § 237(a)(2)(A)(ii). Compare 8 U.S.C. § 1182(c) as amended by AEDPA § 440(d) ivith 8 U.S.C. § 1229b (1999) This complex statutory history applies to St. Cyr as follows: when St. Cyr pled guilty to drug trafficking in March of 1996, he was deportable under the immigration laws as an alien convicted of a drug-related offense which constituted an aggravated felony as defined under the INA. See 8 U.S.C. § 1251(a)(2)(B)® (1994); 8 U.S.C. § 1251(a)(2)(A)(iii) (1994); 8 U.S.C. § 1101(a)(43). At the time he pled guilty to the deportable offense, he was eligible to apply for a waiver of deportation under § 212(c) of the INA. On April 24, 1996, before removal proceedings were commenced against St. Cyr, AEDPA § 440(d) was enacted, making aliens such as he ineligible to apply for a § 212(c) waiver. By April 10, 1997, the date that removal proceedings against St. Cyr were commenced, INA § 212(c) relief had been repealed by IIRIRA § 304(b) and replaced by “cancellation of removal” in § 304(a). St. Cyr was ineligible to apply for “cancellation from removal” by its terms because he was convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43). Thus, if either AEDPA § 440(d) or IIRIRA § 304 apply to this case, as the INS argues, St. Cyr is removable because he pled guilty to a de-portable offense and is statutorily ineligible to apply to the BIA for discretionary relief from deportation. B. Retroactivity. Our analysis of whether AEDPA § 440(d) and IIRIRA § 304 (referred to collectively as “the bar to relief’) apply to removal proceedings against an alien who pled guilty to a deportable crime before the date of IIRIRA’s enactment is governed by the legal principles announced by the Supreme Court in its landmark decisions, Landgraf v. USI Film Prod., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997). The Supreme Court directs that we begin with the “presumption ... deeply rooted in" } ]

[ { "docid": "19784010", "title": "", "text": "case in which the alien committed an aggravated felony. AEDPA took effect on April 24, 1996 — after Zuñiga’s indictment for the drug conspiracy but before he pleaded guilty, and before INS initiated removal proceedings. In In re Soriano, 21 I. & N. Dec. 516, 519-20 (BIA 1996), the Board of Immigration Appeals decided that AEDPA barred waiver in any proceeding where the alien had not applied for waiver before AEDPA’s effective date. Adhering to Soriano, the IJ determined that AEDPA rendered Zuniga ineligible for any waiver of deportation. Zuñiga argues that applying AEDPA to his deportation proceedings created an impermissible retroactive effect. To support his argument, he points to St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347. There, the Supreme Court implicitly overruled Soriano with respect to “aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326, 121 S.Ct. 2271. St. Cyr involved the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), an act that took effect shortly after AEDPA and further reduced the Attorney General’s discretion to grant relief. See id. at 297, 121 S.Ct. 2271. Noting the quid pro quo nature of a plea bargain, id. at 321-22, 121 S.Ct. 2271, the Court applied the Landgraf retroactivity analysis and determined that, “[b]ecause [St. Cyr], and other aliens . like him, almost certainly relied upon [waiver eligibility] in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect.” Id. at 325, 121 S.Ct. 2271. Thus the Court held that “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations’ ” prohibited retroactive application of the IIRIRA to bar relief for such aliens. Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). Like the Court in St. Cyr, we apply the Landgraf analysis in determining" }, { "docid": "20649303", "title": "", "text": "adjournment would be the last one granted to him. On April 22, 1997, Lopez appeared pro se, admitted the allegations in the Order to Show Cause, and conceded deportability. The IJ informed Lopez that he was ineligible for any relief from deportation, including dis cretionary relief under § 212(c) of the INA, and ordered Lopez deported to the Dominican Republic. The IJ also told Lopez of his right to appeal the ruling to the BIA. Lopez appealed the IJ’s decision, arguing that § 440(d) of AEDPA could not be applied retroactively to him and that he should have been afforded § 212(c) relief. On October 31, 1997, the BIA dismissed Lopez’s appeal, applying § 440(d) of AED-PA to hold that Lopez’s criminal conviction made him “statutorily ineligible” for § 212(c) relief. The BIA relied on Matter of Soriano, 1996 WL 426888, 21 I. & N. Dec. 516 (1997), which held that AEDPA’s amendments to § 212(c) applied to proceedings pending when AEDPA became law and to those that commenced subsequent to AEDPA’s passage. Because Lopez’s deportation proceedings began prior to April 1997 and became administratively final after October 1996, IIRIRA’s transitional provisions governed Lopez’s appeal. See Henderson v. INS, 157 F.3d 106, 117 (2d Cir.1998). The relevant transitional provisions, codified in IIRIRA § 309, stated that “[t]here shall be no appeal permitted” of deportation orders based on the alien’s commission of an aggravated felony. 157 F.3d at 117. While Lopez was awaiting deportation, this Circuit held that habeas review under 28 U.S.C. § 2241 remained available under § 309’s transitional provisions. See Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir.1998). Thus, once Lopez received a final order of removal, he could have sought judicial review of his deportation order through a habeas petition even though he could not have filed a petition for review. On June 28, 1999, the government deported Lopez to the Dominican Republic. On June 25, 2001, the Supreme Court decided in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that the provisions of IIRIRA and AEDPA repealing § 212(c)" }, { "docid": "23130013", "title": "", "text": "habeas petitions. Domond argued that Section 440(d) should not apply to aliens whose criminal conduct occurred prior to AEDPA’s effective date of April 24, 1996. Applying the retroactivity analysis set forth in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the district court held “petitioners should have their deportation proceedings governed by the laws that were in effect at the time they committed their crimes” and granted the writ. Dunbar, 64 F.Supp.2d at 53. The INS appealed, and we review these matters of law de novo. See United States v. Figueroa, 165 F.3d 111, 114 (2d Cir.1998). DISCUSSION A. Effect of St. Cyr Shortly before oral argument in the matter before us, this Court issued its opinion in St.Cyr, which held that AED-PA’s bar to a Section 212(c) hearing does not apply to aliens who pleaded guilty or nolo contendere prior to IIRIRA’s and AEDPA’s effective dates. See St.Cyr, 229 F.3d at 421. As a preliminary matter, we noted in St. Cyr: [I]t is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct — as opposed to a plea going to the guilt of a deportable crime — constitutes an impermissible retroactive application of a statute. Indeed, we agree that, It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation. Id. at 418 (citations omitted). Although St. Cyr involved a different factual situation than the one before us, we reach the same result as the St. Cyr panel. We write to expand the analysis. B. Retroactivity We turn now to the issue of whether elimination of Section 212(c) hearings for those whose criminal conduct predates AEDPA’s effective date but whose convictions post-date it is impermissively retroactive. The presumption against retroactive legislation is “deeply rooted in our jurisprudence.” Landgraf, 511 U.S. at" }, { "docid": "22972468", "title": "", "text": "aliens, like Copeland, who had pled guilty to aggravated felonies prior to their enactment. See In re Soriano, 21 I. & N. Dec. 516, 534, 1996 WL 426888 (BIA June 27, 1996), vacated on other grounds, 1997 WL 33347804 (Op. Atty Gen. Feb. 21, 1997). The IJ’s statement to Copeland that new laws had rendered him ineligible for relief was based on Soñano. During 1997 and 1998, however, several courts in this circuit and elsewhere ruled that Section 440(d) could not be applied retroactively in Copeland’s circumstances. See, e.g., Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir.1998); Mojica v. Reno, 970 F.Supp. 130, 182 (E-.D.N.Y.1997). The Supreme Court eventually agreed, holding that Section 440(d) could not be applied retroactively to aliens who pled guilty to crimes prior to 1996 that made them ineligible for Section 212(c) relief under the 1996 Amendments. St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. On September 22, 1998, after his deportation hearing but prior to the decision in St. Cyr, Copeland filed a motion to reopen his deportation proceedings and for a stay of deportation under Section 212(c). Copeland, now represented by counsel, based his motion in part on the argument that the IJ had breached his obligation under 8 C.F.R. § 242.17(a) to inform Copeland of his eligibility for Section 212(c) relief. The same IJ denied Copeland’s motion to reopen on the ground that, although Section 212(c) relief remained available to aliens whose deportation proceedings began prior to the passage of AEDPA, Copeland was ineligible for Section 212(c) relief because his deportation proceedings began after its passage. Copeland appealed the IJ’s decision to the BIA on October 6, 1998, arguing that he was eligible for Section 212(c) relief. However, on November 24, 1998, before the BIA considered his appeal, Copeland was deported to Jamaica. On May 25, 1999, the BIA dismissed Copeland’s appeal as moot under 8 C.F.R. § 3.6(b) because Copeland had already been deported. c) District Court Decision Copeland reentered this country by February 22, 1999, at the latest. On December 1, 2001, he was arrested and thereafter indicted in" }, { "docid": "22353267", "title": "", "text": "that his waiver was invalid because it was neither considered nor intelligent. See Muro-Indan, 249 F.3d at 1182. We need not resolve the waiver question, because even assuming Velasco-Medina did not waive his right to collaterally attack his deportation, we find no due process violation to support his claim. Velasco-Medina contends that the IJ’s failure to inform him of his eligibility for § 212(c) relief reflects the same retroactive application of IIRIRA held impermissible by the Supreme Court in St. Cyr. We agree that St. Cyr guides our analysis but find that it supports the government’s, not Velaseo-Medina’s, position. Enrico St. Cyr pleaded guilty to a state law drug offense ten years after his admission to the United States as a lawful permanent resident. Though his guilty plea rendered him deportable, St. Cyr was eligible for § 212(c) relief under then— current, pre-IIRIRA law. Removal proceedings were commenced shortly after IIRIRA’s effective date. At his removal hearing, St. Cyr sought to avoid removal by applying for a waiver- under § 212(c). After the IJ denied St. Cyr’s § 212(c) application, St. Cyr appealed to the Board of Immigration Appeals. Believing that IIR-IRA § 304 deprived St. Cyr of possible relief under § 212(c), the BIA dismissed the appeal. St. Cyr v. INS, 229 F.3d 406, 408-09 (2d Cir.2000). St. Cyr filed a habeas petition in district court alleging that AEDPA and IIRIRA did “not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before their enactment.” St. Cyr, 533 U.S. at 293, 121 S.Ct. 2271. The district court and Second Circuit agreed, and the Supreme Court affirmed: “ § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326, 121 S.Ct. 2271. In reaching this conclusion, the Court relied on Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which provides a two-step analysis for" }, { "docid": "13127706", "title": "", "text": "it with a procedure called “cancellation of removal,” see 8 U.S.C. § 1229b (1996), and providing that cancellation of removal is not available to an alien convicted of any aggravated felony. This provision was consistent with section 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part at 8 U.S.C. § 1182 (1996)), enacted shortly before IIRIRA, which rendered aliens convicted of aggravated felonies, regardless of the length of their sentence, ineligible for discretionary relief from deportation under former § 212(c). In INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that discretionary relief under former § 212(c) “remains available for aliens ... whose convictions were obtained through plea agreements and who ... would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” In St Cyr, the Court needed to determine whether IIRIRA section 304(b) applied retroactively. After concluding that Congress did not provide a sufficiently clear command with respect to the temporal reach of the repeal of former § 212(c) by IIRIRA section 304(b), the Court applied the next step of the familiar principles of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to determine whether the repeal had an impermissible retroactive effect. Landgraf cataloged a history of Supreme Court precedent establishing a “presumption against statutory retroactivity,” id. at 270, 114 S.Ct. 1483, in the absence of a clear command from Congress. A statute will be impermissibly retroactive when it attaches new legal consequences to prior events because its application “would im pair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280, 114 S.Ct. 1483. The question whether a new statute attaches new legal consequences to prior conduct “demands a commonsense, functional judgment” that “should be informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” Martin v. Hadix," }, { "docid": "23524552", "title": "", "text": "available to most long-term legal residents of the United States, including many who were criminal aliens. See 8 U.S.C. § 1182(c) (1995) (repealed 1996). For a significant number of such aliens, a § 212(c) waiver constituted the only possible way of securing relief from deportation. United States v. Copeland, 376 F.3d 61, 73 (2d Cir.2004). In recognition of the importance of § 212(c) relief to aliens facing deportation, we have held that the erroneous denial of the opportunity to apply for § 212(c) relief may render deportation proceedings “fundamentally unfair.” Id. at 75. In 1990 and again, in 1996, Congress limited the availability of § 212(c) relief. In 1990, Congress restricted the category of aggravated felons eligible for § 212(c) relief to those who had not served five or more years in prison on their aggravated felony offense. See Immigration Act of 1990 (“IMMAct”), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). In 1996, in § 440(d) of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Congress excluded aggravated felons altogether from the class of those eligible for § 212(c) relief. Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (1996). Shortly thereafter, in the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Congress replaced § 212(c) relief with a new form of discretionary relief known as “cancellation of removal,” for which aggravated felons are not eligible. Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546 (1996) (codified at 8 U.S.C. 1229b). The 1996 amendments to § 212(c) were subsequently deemed by the Attorney General to apply to all pending and future deportation proceedings. See Matter of Soriano, 21 I. & N. Dec. 516 (Op. Atty Gen. Feb. 21, 1997); see also Matter of Yeung, 21 I. & N. Dec. 610, 1996 WL 683917 (BIA 1996). Thus, during the years immediately following the passage of AEDPA and IIRIRA, aggravated felons facing deportation were routinely deemed ineligible for § 212(c) relief. Our Court reversed part of the Attorney General’s approach in 1998, and held that .§ 440(d) was not intended to apply retroactively to immigration proceedings pending at the time of" }, { "docid": "23013756", "title": "", "text": "tinkered with Francis, Congress began to chip away at the availability of a § 212(c) waiver for criminal deportees. In 1990, Congress amended § 212(c) to remove the Attorney General’s discretion to grant a waiver to aggravated felons who served more than five years in prison. See Immigration Act of 1990 (“IMMACT”), Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (1990). Six years later, Congress eliminated § 212(c) waivers altogether for lawful permanent residents convicted of an aggravated felony. See Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, 1227 (1996). That same year Congress went even further, replacing § 212(c) with cancellation of removal, which explicitly denies the Attorney General discretion to cancel the removal of an aggravated felon. See IIRIRA § 304(b) codified at 8 U.S.C. § 1229b(b)(l)(C). A series of decisions by this Court and the Supreme Court limited the applicability of AEDPA and IIRIRA. First, we held that Congress did not intend for AEDPA to apply retroactively to cases pending when AEDPA was enacted. Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). We then took the next logical step and held that AEDPA and IIRIRA did not apply to lawful permanent residents who pleaded guilty to an offense that would affect their immigration status before the statutes’ enactment. St. Cyr v. INS, 229 F.3d 406, 420 (2d Cir.2000). The Supreme Court upheld the latter conclusion. See St Cyr, 533 U.S. at 326, 121 S.Ct. 2271. The DHS promulgated a rule to, implement the Supreme Court’s decision in St. Cyr. The original form of the rule provided that a § 212(c) waiver would be available to lawful permanent residents with a criminal conviction entered before April 1, 1997. See Section 212(c) Relief For Aliens With Certain Criminal Convictions Before April 1, 1997, 69 Fed.Reg. 57,826 (Sept. 28, 2004) (codified at 8 C.F.R. pts. 1003, 1212, and 1240). During the notice and comment period, however, the DHS received a comment that suggested a clarification of the comparable grounds analysis: One commenter stated that the proposed rule should clarify that an" }, { "docid": "6830130", "title": "", "text": "in Matter of Soriano, 21 I. & N. Dec. 516, 1996 WL 426888 (BIA June 27, 1996). See Authority of the Attorney General to Grant Discretionaiy Relief from Deportation Under Section 212(c) of the Immigration and Nationality Act as Amended by the Antiterrorism and Effective Death Penalty Act of 1996, 1997 WL 33347804, at n. 4 (O.L.C.) (Op. Att’y Gen. Feb. 21, 1997). The BIA noted that, while Henderson v. INS, 157 F.3d 106 (2d Cir.1998), held that the AEDPA's section 440(d) did not apply retroactively to pending deportation proceedings, that decision reserved the question of whether section 440(d) applied to criminal convictions that occurred prior to the AEDPA’s enactment. . Both of these holdings preceded this court’s decisions in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), aff'd 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Domond v. INS, 244 F.3d 81 (2d Cir.2001), as well as the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). . St. Cyr I and the other cases discussed here also applied the same retroactivity analysis to the elimination of 212(c) relief effected by the IIRIRA’s section 304. For convenience, we will only discuss these cases as they relate to the AEDPA’s section 440(d), since that is the only provision at issue in the instant case. . We cannot, see Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir.1995) (per curiam), and do not take issue with this statement. We do, however, note that, in the context of criminal sanctions, similar retroactive increases in penalties have been considered to raise serious concerns under the Ex Post Facto Clause, see, e.g., Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 663, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (concerning retroactive elimination of parole eligibility), presumably because they violate notice rather than reliance interests. See generally Landgraf, 511 U.S. at 270, 114 S.Ct. 1483, on notice and reliance considerations in retroactivity analysis, and note 16, infra, on the punitive aspects of deportation sanctions. Nevertheless, the Ex Post Facto Clause has been held" }, { "docid": "23524553", "title": "", "text": "class of those eligible for § 212(c) relief. Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (1996). Shortly thereafter, in the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Congress replaced § 212(c) relief with a new form of discretionary relief known as “cancellation of removal,” for which aggravated felons are not eligible. Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546 (1996) (codified at 8 U.S.C. 1229b). The 1996 amendments to § 212(c) were subsequently deemed by the Attorney General to apply to all pending and future deportation proceedings. See Matter of Soriano, 21 I. & N. Dec. 516 (Op. Atty Gen. Feb. 21, 1997); see also Matter of Yeung, 21 I. & N. Dec. 610, 1996 WL 683917 (BIA 1996). Thus, during the years immediately following the passage of AEDPA and IIRIRA, aggravated felons facing deportation were routinely deemed ineligible for § 212(c) relief. Our Court reversed part of the Attorney General’s approach in 1998, and held that .§ 440(d) was not intended to apply retroactively to immigration proceedings pending at the time of its enactment. Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). In 2000, in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (“St. Cyr I ”), our Court further limited the sweep of AEDPA and IIRIRA. We concluded that the Acts’ restrictions on discretionary relief imposed retroactive consequences on those who had pled guilty prior to the laws’ enactment. Id. at 418. A retroactive effect of this sort, we held, was only permitted under Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), if Congress clearly intended it. St. Cyr I, 229 F.3d at 413. Finding no such intent in the statutes, we ruled that the relevant aliens were potentially eligible for § 212(c) relief. Id. at 420. St. Cyr was subsequently affirmed by the Supreme Court. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“St. Cyril”). Following the decisions in Henderson and St. Cyr I and II, many aliens who had been denied the opportunity to apply for § 212(c)" }, { "docid": "12994396", "title": "", "text": "of aliens eligible for § 212(c) discretionary relief. Yet, on April 24, 1996, through § 440(d) of AEDPA, Congress eliminated § 212(c) relief for certain criminal aliens, including those convicted of aggravated felonies, irrespective of the amount of time they served in prison. Soon thereafter, on September 30, 1996, § 304(b) of IIRIRA repealed § 212(c) relief in its entirety and replaced it with a form of relief called “cancellation of removal,” which is unavailable to aggravated felons. See Thom v. Ashcroft, 369 F.3d 158, 159 (2d Cir.2004). Subsequent precedential case law development guides our analysis on the effects of AEDPA and IIRIRA to Wilson’s claim of continued eligibility for § 212(c) relief. We briefly discuss that case law development now. A. An Overview of Relevant Case Law Development 1. The Supreme Court’s Decision in St. Cyr In 2001, in St. Cyr, the Supreme Court was asked to determine whether the retroactive effect of IIRIRA was permissible or not. Specifically, a lawful permanent United States resident, who, before the enactment of either the AEDPA or the IIIRA, had pled guilty to a criminal charge that made him deportable, sought the relief afforded by INA § 212(c) in his removal proceeding that was commenced after the enactment of AEDPA and IIRIRA. See St. Cyr, 533 U.S. at 289, 121 S.Ct. 2271. Both the district court and this Court had determined that § 212(c) relief was still available. In making its determination, this Court relied primarily on the Supreme Court’s retroactivity analysis articulated in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and, applying that analysis, held the retroactive effect of IIRIRA was impermissible. See St. Cyr v. INS, 229 F.3d 406, 417-18 (2d Cir.2000). The Supreme Court agreed; thus, § 212(c) remained available to aliens in removal proceedings who entered guilty pleas prior to the enactment of IIRIRA. See St. Cyr, 533 U.S. at 315, 326, 121 S.Ct. 2271. In finding that a retroactive application of IIRIRA would be contrary to “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations,’ ” id." }, { "docid": "6830150", "title": "", "text": "212(c) relief remained eligible even after the AEDPA and the IIRIRA eliminated such relief. Id. at 420-21. We did this, not because we could say that Congress clearly meant these laws to apply only prospectively, but because Landgraf’s presumption against retroactivity required such an interpretation. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We found Landgraf’s presumption to apply because we concluded that a significant number of aliens who pled guilty did so in the reasonable expectation that 212(c) relief would remain a possibility despite their conviction. St. Cyr I, 229 F.3d at 418-21. Second, in dicta, we rejected the notion that aliens who committed a crime when 212(c) relief was available would continue to be eligible for that relief even after the AEDPA and the IIRIRA had abolished it. Id. at 418. That is, a) we stated that any reliance, in committing a crime, on the availability of 212(c) relief was not the kind of rebanee that triggered Landgraf’s presumption against retroactivity, and b) we implied that other considerations mentioned in Landgraf (like notice) were not sufficiently implicated in the context of such pre-enactment criminal conduct to give rise to a Landgraf presumption. Third, we suggested in our reasoning- — • but we did not yet hold — that an alien’s decision to go to trial did not give rise to Landgraf reliance and expectation interests. Id. at 419. The latter two sets of dicta became the law of the circuit following our holdings in Domond v. INS, 244 F.3d 81, 86 (2d Cir.2001) (“As we noted in St. Cyr, ‘[i]t would border on the absurd to argue’ that Do-mond would have decided not to commit a crime if he had known that he not only could be imprisoned, but also could face deportation without the availability of a discretionary waiver of deportation.”) (citing St. Cyr I, 229 F.3d at 418), and Rankins v. Reno, 319 F.3d 93, 99 (2d Cir.2003) (“We cannot ... ignore the strong signals sent in [the St. Cyr decisions] that aliens who chose to go to" }, { "docid": "22972467", "title": "", "text": "Stat. 3009-546, enacted on September 30, 1996 (collectively, “the 1996 Amendments”), which amended the Immigration and Nationality Act (“INA”), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. Prior to these amendments, the Attorney General had broad discretion to cancel deportation orders for aliens who met certain residence requirements and had not served five years in prison for an aggravated felony. See 8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S. 289, 296-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). AEDPA amended Section 1182(c) to render aliens who pled guilty to aggravated felonies ineligible for Section 212(c) discretionary relief from deportation. AED-PA § 440(d). IIRIRA then repealed § 212(c), see IIRIRA § 304(b), replacing it with a new section giving the Attorney General authority to cancel removal for only a narrowly defined class of inadmissible or deportable aliens, not including anyone “convicted of any aggravated felony,” id. (creating 8 U.S.C. § 1229b). At the time of Copeland’s deportation hearing, the BIA’s position was that the 1996 Amendments applied retroactively to aliens, like Copeland, who had pled guilty to aggravated felonies prior to their enactment. See In re Soriano, 21 I. & N. Dec. 516, 534, 1996 WL 426888 (BIA June 27, 1996), vacated on other grounds, 1997 WL 33347804 (Op. Atty Gen. Feb. 21, 1997). The IJ’s statement to Copeland that new laws had rendered him ineligible for relief was based on Soñano. During 1997 and 1998, however, several courts in this circuit and elsewhere ruled that Section 440(d) could not be applied retroactively in Copeland’s circumstances. See, e.g., Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir.1998); Mojica v. Reno, 970 F.Supp. 130, 182 (E-.D.N.Y.1997). The Supreme Court eventually agreed, holding that Section 440(d) could not be applied retroactively to aliens who pled guilty to crimes prior to 1996 that made them ineligible for Section 212(c) relief under the 1996 Amendments. St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. On September 22, 1998, after his deportation hearing but prior to the decision in St. Cyr, Copeland filed a motion to reopen his deportation" }, { "docid": "6830149", "title": "", "text": "colorable defense because the act of accepting responsibility would bode well for their § 212(c) application. Similarly, there may be aliens who pled to lesser offenses than those charged in order to ensure that they would serve less than five years of prison time. If applied to such aliens, that is, those who pled to or did not contest criminal charges in reasonable reliance on the availability of § 212(c) relief, AEDPA § 440(d) would have a retroactive effect. 212 F.3d at 39-40. CALABRESI, Circuit Judge, concurring. While not needed to decide this case, I think that an explanation of the current state of the law in this complicated area, and how it relates to the case before us, may be useful. Accordingly, and with that end in mind, I write a few pages separately- I. In St. Cyr I, this court did three things. See St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000). First, we held that aliens who pled guilty to certain deportable offenses at a time when they were eligible for 212(c) relief remained eligible even after the AEDPA and the IIRIRA eliminated such relief. Id. at 420-21. We did this, not because we could say that Congress clearly meant these laws to apply only prospectively, but because Landgraf’s presumption against retroactivity required such an interpretation. See Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). We found Landgraf’s presumption to apply because we concluded that a significant number of aliens who pled guilty did so in the reasonable expectation that 212(c) relief would remain a possibility despite their conviction. St. Cyr I, 229 F.3d at 418-21. Second, in dicta, we rejected the notion that aliens who committed a crime when 212(c) relief was available would continue to be eligible for that relief even after the AEDPA and the IIRIRA had abolished it. Id. at 418. That is, a) we stated that any reliance, in committing a crime, on the availability of 212(c) relief was not the kind of rebanee that triggered Landgraf’s presumption against retroactivity, and b) we implied" }, { "docid": "12994397", "title": "", "text": "the IIIRA, had pled guilty to a criminal charge that made him deportable, sought the relief afforded by INA § 212(c) in his removal proceeding that was commenced after the enactment of AEDPA and IIRIRA. See St. Cyr, 533 U.S. at 289, 121 S.Ct. 2271. Both the district court and this Court had determined that § 212(c) relief was still available. In making its determination, this Court relied primarily on the Supreme Court’s retroactivity analysis articulated in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and, applying that analysis, held the retroactive effect of IIRIRA was impermissible. See St. Cyr v. INS, 229 F.3d 406, 417-18 (2d Cir.2000). The Supreme Court agreed; thus, § 212(c) remained available to aliens in removal proceedings who entered guilty pleas prior to the enactment of IIRIRA. See St. Cyr, 533 U.S. at 315, 326, 121 S.Ct. 2271. In finding that a retroactive application of IIRIRA would be contrary to “ ‘familiar considerations of fair notice, reasonable reliance, and settled expectations,’ ” id. at 323, 121 S.Ct. 2271 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483), the Supreme Court relied heavily on the fact that “[p]lea agreements involve a quid pro quo between a criminal defendant and the government,” id. at 321, 114 S.Ct. 1483. By entering into a plea agreement, an alien-defendant surrenders important constitutional rights (such as a trial by jury) in anticipation of, inter alia, receiving a sentence that preserves his eligibility for § 212(c) relief (i.e., a sentence of less than five years), while the government receives the benefit of “ ‘promptly imposed punishment without the expenditure of prosecu-torial resources.’ ” Id. at 321-23, 114 S.Ct. 1483 (quoting Newton v. Rumery, 480 U.S. 386, 393 n. 3, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987)). The Supreme Court reasoned that an alien-defendant’s reliance on the continued availability of § 212(c) relief was reasonable because, “as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” Id. at 322, 114 S.Ct. 1483" }, { "docid": "22353268", "title": "", "text": "St. Cyr’s § 212(c) application, St. Cyr appealed to the Board of Immigration Appeals. Believing that IIR-IRA § 304 deprived St. Cyr of possible relief under § 212(c), the BIA dismissed the appeal. St. Cyr v. INS, 229 F.3d 406, 408-09 (2d Cir.2000). St. Cyr filed a habeas petition in district court alleging that AEDPA and IIRIRA did “not apply to removal proceedings brought against an alien who pled guilty to a deportable crime before their enactment.” St. Cyr, 533 U.S. at 293, 121 S.Ct. 2271. The district court and Second Circuit agreed, and the Supreme Court affirmed: “ § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 326, 121 S.Ct. 2271. In reaching this conclusion, the Court relied on Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), which provides a two-step analysis for determining whether a statute is impermissibly retroactive. Under Landgraf, “the first step in determining whether a statute has an im permissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively.” St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. The Court rejected the INS’s argument that Congress “ha[d] affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id. at 320,121 S.Ct. 2271. Proceeding to the second step of the Landgraf retroactivity analysis, the Court considered whether depriving St. Cyr of § 212(c) relief had an impermissible retroactive effect. “A statute has retroactive effect when it ‘takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.’ ” Id. at 321, 121 S.Ct. 2271 (quoting Landgraf, 511 U.S. at 269, 114 S.Ct. 1483). The Court held that IIRI-RA’s elimination of § 212(c)" }, { "docid": "6830129", "title": "", "text": "(noting that this court has \"long held” that section 212(c) applies to deportation). The BIA adopted our position in Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976), holding that \"no distinction shall be made between permanent resident aliens who temporarily proceed abroad and non-departing permanent resident aliens,” id., with regard to their eligibility to apply for 212(c) relief. . Section 440(d) of the AEDPA barred certain criminal aliens, including those convicted of aggravated felonies, from seeking 212(c) relief. See 110 Stat. at 1277. Congress later repealed section 212(c) and replaced it with a form of relief called \"cancellation of removal.” See Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRI-RA”), Pub.L. No. 104-208, § 304(a),(b), 110 Stat. 3009, 3009, 594-97 (Sept. 30, 1996). Petitioner's case, however, is not controlled by the IIRIRA, since that law only applies to deportation proceedings instituted after April 1, 1997. See Rankine v. Reno, 319 F.3d 93, 95-96 (2d Cir.2003). . The BIA based this conclusion on the Attorney General’s decision vacating the BIA’s holding in Matter of Soriano, 21 I. & N. Dec. 516, 1996 WL 426888 (BIA June 27, 1996). See Authority of the Attorney General to Grant Discretionaiy Relief from Deportation Under Section 212(c) of the Immigration and Nationality Act as Amended by the Antiterrorism and Effective Death Penalty Act of 1996, 1997 WL 33347804, at n. 4 (O.L.C.) (Op. Att’y Gen. Feb. 21, 1997). The BIA noted that, while Henderson v. INS, 157 F.3d 106 (2d Cir.1998), held that the AEDPA's section 440(d) did not apply retroactively to pending deportation proceedings, that decision reserved the question of whether section 440(d) applied to criminal convictions that occurred prior to the AEDPA’s enactment. . Both of these holdings preceded this court’s decisions in St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), aff'd 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Domond v. INS, 244 F.3d 81 (2d Cir.2001), as well as the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). . St. Cyr I" }, { "docid": "16418525", "title": "", "text": "at 102-03; Domond, 244 F.3d at 85-86. In Domond, this Court held that the application of AEDPA § 440(d) to an alien whose offense conduct occurred prior to AEDPA’s effective date is not impermissi-bly retroactive where the alien pleaded guilty after AEDPA’s effective date. See 244 F.3d at 85-86. Using the analytical framework set forth in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), we inquired, first, whether Congress had expressed its intent as to whether AEDPA § 440(d) was to apply to an alien whose criminal conduct predated AEDPA’s enactment but whose conviction followed AEDPA’s effective date, and, second, if there was no clear expression of intent, whether the section had a retroactive effect. See Domond, 244 F.3d at 84-85. We concluded that Congress’s intent as to retrospectivity was ambiguous. See id. at 85. We then concluded that § 440(d) imposed no new legal consequences on such an alien, given that “ ‘[i]t is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief,”’ id. at 85-86 (quoting St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir.2000) (“St. Cyr I”) (other internal quotation marks omitted), aff'd, St. Cyr II, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)), and that the section thus did not have a retroactive effect. Accordingly, application of § 440(d) to Domond did not violate his rights under the Due Process or Ex Post Facto Clauses. Khan contends that the Supreme Court decision in St. Cyr II implicitly overruled our decision in Domond. We disagree. In St. Cyr II, which affirmed this Court’s decision in St. Cyr I, the alien whose conduct constituted an aggravated felony had entered his plea of guilty prior to the enactment of AEDPA and IIRIRA. In St. Cyr I, we therefore concluded that the application of AEDPA § 440(d) to him would have a retroactive effect. See 229 F.3d at 418. Further, we reasoned that, in light of “the dramatic impact removal would have on a legal resident’s life,” a lawful permanent resident would likely elect" }, { "docid": "23524554", "title": "", "text": "its enactment. Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998). In 2000, in St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (“St. Cyr I ”), our Court further limited the sweep of AEDPA and IIRIRA. We concluded that the Acts’ restrictions on discretionary relief imposed retroactive consequences on those who had pled guilty prior to the laws’ enactment. Id. at 418. A retroactive effect of this sort, we held, was only permitted under Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), if Congress clearly intended it. St. Cyr I, 229 F.3d at 413. Finding no such intent in the statutes, we ruled that the relevant aliens were potentially eligible for § 212(c) relief. Id. at 420. St. Cyr was subsequently affirmed by the Supreme Court. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (“St. Cyril”). Following the decisions in Henderson and St. Cyr I and II, many aliens who had been denied the opportunity to apply for § 212(c) relief under Soriano or Yeung petitioned the Board of Immigration Appeals (“the BIA” or “the Board”) to reopen their immigration proceedings. In addition, the BIA itself, sua sponte, reopened the proceedings of some aliens, who now appeared to be eligible for § 212(c) relief. The Petitioners are among those who sought, or were sua sponte granted, reopening of their immigration proceedings after Henderson or St. Cyr. B. Anthony Milton Edwards i. 'Facts Petitioner Anthony Milton Edwards (“Edwards”) entered the United States as a lawful permanent resident in 1986. Pri- or to his incarceration on the charges forming the underlying basis for his deportation order, he was lawfully employed for many years, and served in the United States military. Petitioner Edwards has strong family ties in the United States, with both of his parents, as well as all of his siblings, residing .here. Edwards was arrested on' August 4, 1992 on drug-related charges. On October 26, 1992, he pleaded guilty to, and was convicted of, attempted criminal sale of a controlled substance in the third degree." }, { "docid": "19090582", "title": "", "text": "Gen., 382 F.3d 1299, 1302-03 (11th Cir.2004) (summarizing impact of AEDPA and IIRIRA on § 212(c)). First, it passed AEDPA. Section 440(d) of that statute bars § 212(c) relief for aliens who committed a broad set of offenses, including a controlled substances offense. See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c)). And in September of 1996, IIRIRA repealed § 212(c) relief altogether. See § 304(b), 110 Stat. 3009-597. In its place, Congress created a “cancellation of removal” procedure. St Cyr, 533 U.S. at 297, 121 S.Ct. 2271 (citing IIRIRA § 304(b), 110 Stat. 3009-594) (codified at 8 U.S.C. § 1229b). IIRIRA § 304(b) stripped the Attorney General’s authority to waive de portation, now called removal, for any alien convicted of an “aggravated felony.” Id. St. Cyr addressed whether an alien who was convicted of a deportable offense was still eligible for § 212(c) relief where (1) he .was convicted of an aggravated felony in March of 1996, (2) deportation proceedings did not begin until April 10, 1997 (after both IIRIRA and AEDPA went into effect), and (3) he was otherwise eligible to apply for § 212(c) relief but for the retroactive application of IIRIRA and AEDPA. 533 U.S. at 315, 121 S.Ct. 2271. Put differently, the question was whether IIRI-RA’s repeal of § 212(c) relief had an impermissible retroactive effect on aliens whose convictions were obtained through guilty pleas, notwithstanding the fact that they were eligible for § 212(c) relief at the time they pled guilty. The Supreme Court said yes. Drawing on Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court held that IIRI-RA had an impermissible retroactive effect on aliens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. The Supreme Court first explained that “[rjetroactive statutes raise special concerns.” Id. at 315, 121 S.Ct. 2271. It reasoned that the “presumption against retroactive legislation is deeply" } ]

[ { "docid": "16225195", "title": "", "text": "negligence was a proximate cause of Plaintiffs injuries. Defendants have the burden of proving this defense by a preponderance of the evidence.” Under Louisiana law, a manufacturer has no duty to warn a sophisticated user. The Louisiana Products Liability Act provides that: “A manufacturer is not required to provide an adequate warning about his product when ... [t]he user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.” La.Rev.Stat.Ann. § 9:2800. 57(B)(2) (West 1991). See also Duncan v. Louisiana Power & Light Co., 532 So.2d 968, 972 (La.App., 5th Cir.1988) (“There is no duty to warn a sophisticated user of dangers of which he may be presumed to know through his familiarity with the product.”); Gautreaux v. Tex-Steam Co., 723 F.Supp. 1181, 1182 (E.D.La.1989), aff’d, 921 F.2d 274 (5th Cir.1990) (table). Similarly, a manufacturer has no duty to warn a sophisticated purchaser. “... Louisiana does not hold a manufacturer is compelled to warn sophisticated purchasers of dangers of which the buyer either knows or should be aware.” Bradco Oil & Gas Co. v. Youngstown Sheet & Tube Co., 532 F.2d 501, 504 (5th Cir.1976), cert. denied, 429 U.S. 1095, 97 S.Ct. 1111, 51 L.Ed.2d 542 (1977). Here, Avondale was clearly both a user and a purchaser of the rods in question. Finally, though no Louisiana case has clearly addressed the issue, see Mozeke v. International Paper Co., 933 F.2d 1293, 1297 & n. 2 (5th Cir.1991), we conclude that Louisiana courts would likely hold that in a setting such as this the product manufacturer owes no duty to the employee of a purchaser if the manufacturer provides an adequate warning of any inherent dangers to the purchaser or if the purchaser has knowledge of those dangers and the duty to warn its employees thereof. See West v. Hydro-test, Inc., 196 So.2d 598, 606 (La. App. 1st Cir.1967). Many courts hold that the supplier of a product to an employer discharges any duty to warn the purchaser’s employees by warning" } ]

[ { "docid": "4666041", "title": "", "text": "section 388 requires, in this case, an analysis of whether it was reasonable for Dow, Goodrich, and Union Carbide to rely on Monsanto to warn Taylor. Carrel, 852 N.E.2d at 109 (internal quotation marks and citation omitted). In support of their position, appellants cite both the district court below and courts in other jurisdictions that have considered reasonable reliance when determining whether the sophisticated user defense applies. See, e.g., Smith v. Walter C. Best, Inc., 927 F.2d 736, 739-40 (3d Cir.1990) (applying Ohio law); Willis v. Raymark Indus., Inc., 905 F.2d 793, 796 (4th Cir.1990) (applying Va. law); Goodbar v. Whitehead Bros., 591 F.Supp. 552, 557 (W.D.Va.1984) (applying Va. law). In response, appellees argue that under Massachusetts law, reasonable reliance is not an element of the sophisticated user defense, and that the Supreme Judicial Court rejected this approach when it distinguished the sophisticated user and bulk supplier defenses in Hoffman. We agree with appellees that reasonable reliance is not an element of the sophisticated user defense as it exists under Massachusetts law. In Hoffman, the SJC compared the defenses side by side, and described only the bulk supplier defense as involving a determination that the supplier reasonably relied on an intermediary to transmit warnings. See Hoffman, 751 N.E.2d at 854. Subsequently, when the court formally adopted the sophisticated user defense in Carrel, it did not mention a reasonable reliance element. See Carrel, 852 N.E.2d at 109. Nor is reasonable reliance discussed in Massachusetts pattern civil jury instructions. See 1 Patrick Brady et al., Massachusetts Superior Court Civil Practice Jury Instructions § 11.2.4(f) (2008) (“When considering the extent and nature of the manufacturer’s duty to warn, the jury should take into account knowledge that the manufacturer had, or could be expected to have, regarding the use of the product as compared to the knowledge and skills of the user.”). Moreover, because the sophisticated user defense may apply even where there is no intermediary between the supplier and the injured party, Hoffman, 751 N.E.2d at 854, there may be no reliance on an intermediary for a court or fact-finder to evaluate. Even" }, { "docid": "4666042", "title": "", "text": "SJC compared the defenses side by side, and described only the bulk supplier defense as involving a determination that the supplier reasonably relied on an intermediary to transmit warnings. See Hoffman, 751 N.E.2d at 854. Subsequently, when the court formally adopted the sophisticated user defense in Carrel, it did not mention a reasonable reliance element. See Carrel, 852 N.E.2d at 109. Nor is reasonable reliance discussed in Massachusetts pattern civil jury instructions. See 1 Patrick Brady et al., Massachusetts Superior Court Civil Practice Jury Instructions § 11.2.4(f) (2008) (“When considering the extent and nature of the manufacturer’s duty to warn, the jury should take into account knowledge that the manufacturer had, or could be expected to have, regarding the use of the product as compared to the knowledge and skills of the user.”). Moreover, because the sophisticated user defense may apply even where there is no intermediary between the supplier and the injured party, Hoffman, 751 N.E.2d at 854, there may be no reliance on an intermediary for a court or fact-finder to evaluate. Even where an intermediary exists, as in this case, the rationale of the sophisticated user defense is distinct. The question for purposes of applying the sophisticated user defense is whether the end user appreciated the particular danger because of its sophistication, whatever the source of that sophistication. Whether it would be reasonable for a supplier to rely on that user to transmit a warning is a different question, and the answer to that question may reveal little about what dangers the end user already appreciated because of its sophistication. Furthermore, the SJC has made clear its view that comment n to section 388 of the Restatement, from which the factors for assessing reasonable reliance derive, relates specifically to the bulk supplier defense. Hoffman, 751 N.E.2d at 855 (“The bulk supplier doctrine originates in the Restatement (Second) of Torts § 388 comment n (1965).”). The sophisticated user defense also derives from section 388, but from comment k, not comment n. Gray, 676 N.W.2d at 277 n. 6. Comment k dis cusses clause (b) of section 388, which" }, { "docid": "5542050", "title": "", "text": "statement that the plaintiff was a “sophisticated user” was not especially meaningful or crucial to the holding. In Ducote v. Liberty Mutual Insurance Co., the trial court found, after a full trial, that the manufacturer’s warning that the electrical saw should be grounded while in use to protect the user from electric shock was adequate to warn an experienced carpenter of the danger of death by electrocution. The trial court based its decision on a finding that the warning was adequate, not on whether the manufacturer had been relieved of a duty to warn; the use of the term “sophisticated user” in the appellate opinion was unnecessary and irrelevant. Finally, the court in Scallan v. Duriron Co., applying pre-LPLA law, affirmed a summary judgment relieving the manufacturer of a duty to warn because the danger was obvious to an ordinary, not a sophisticated, user. Moreover, none of these cases presented an issue of whether there was a genuine issue of material fact for trial as to whether a purchaser already knew or reasonably should have known of the dangerous characteristic of a product so as to excuse a manufacturer’s failure to provide an adequate warning. All except one were decided after a trial, and the one was a case of summary judgment based on a danger obvious to an ordinary user. V. CONCLUSION For the foregoing reasons, the judgment of the district court in favor of defendants, Columbian and Henkel, is REVERSED and the case is REMANDED for proceedings consistent with this opinion. Part I of this opinion was written by Judge Dowd. . The order reads, in its entirety, \"It is hereby ordered, pursuant to the foregoing Motion to Dismiss Without Prejudice, that the remaining claim of complainants against Henkel Corporation and Millennium Petrochemicals, Inc., be dismissed without prejudice.” The order did not refer to the qualified nature of the parties’ stipulated motion. . The order reads, in its entirety, \"It is hereby ordered that the Memorandum Rulings issued on February 8, 1999 and February 22, 1999, be and are hereby rendered as final judgments pursuant to the Federal" }, { "docid": "5542065", "title": "", "text": "danger. We do not base our decision herein on this statutory nuance, however, because there is no evidence that Columbian ever acquired actual or constructive knowledge of the dangerous characteristic prior to Mr. Swope's exposure to ozone on July 10, 1996. . La.Rev.Stat. Ann. § 9:2800.57(B)(2) (West 1997). . Bryan A. Gamer, A Dictionary of Modern Legal Usage 82 (1987). . According to Mr. Jordan, a \"turnaround” is \"when we take a unit down and go through the complete unit and take a look at all of the equipment and do maintenance work on all of the equipment.” . 975 F.2d 169 (5th Cir.1992). . Henkel Br. at 17. . La.Rev.Stat. Ann. 9:2800.57(B)(2) (West 1997) (emphasis added); accord Davis, 975 F.2d at 172-75 (implicitly recognizing that this and related issues must be submitted to the jury with proper instructions if reasonable minds could differ, as the court in Davis evaluated the adequacy of a jury instruction on the \"sophisticated purchaser” defense). . 8 F.3d 296, 300 (5th Cir.1993). . 648 So.2d 331, 337 (La.1995). . 859 F.2d 1224-25 (5th Cir.1988). . Id. at 1226. . 451 So.2d 1211 (La.Ct.App. 4th Cir.1984). . Id. at 1215 (\"Having determined that the trial court did not clearly err in finding that Skil Corporation's warnings were adequate, we must affirm the judgment.\"). . 11 F.3d 1249, 1252 (5th Cir.1994). Although the court in Scallan does make mention of the term \"sophisticated user,” its holding is clear: \"The danger inherent in pumping chlorine through a hydraulic pump is obvious to an ordinary user of hydraulic pumps, such as Allied. Consequently, no genuine issue of material fact exists as to whether Duriron had a duty to warn that the pump should be fitted with an automatic sensing mechanism or used with an inert hydraulic fluid.” Id." }, { "docid": "20319282", "title": "", "text": "of expertise and knowledge about the dangers of welding fumes as did [the Manufacturers] themselves; (2) [Ingalls] could be reasonably expected to convey that information to Mr. Jowers; and (3) at the time [the Manufacturers] were selling to the employers the products that allegedly injured Mr. Jowers, [the Manufacturers] themselves had reason to believe that [Ingalls] had this knowledge and expertise about neurological injury and welding fumes, and had reason to believe that [Ingalls] would convey that information to Mr. Jowers. The jury could have rejected the sophisticated user defense on any one of these elements, not merely the foreseeability element. Thus, the jury readily could have decided that Ingalls was not sufficiently “sophisticated” to absolve defendants of any duty to warn, but had they been instructed on apportionment of fault, the jury may have determined that Ingalls bore some responsibility for Jowers’ injury. Indeed, the jury found Jowers 40% at fault for his own injuries. It is entirely conceivable that the jury may have found that Ingalls, which was responsible for providing Jowers with a safe workplace, shared some fault as well. Evidence at trial demonstrated that welding fume exposure levels at Ingalls sometimes exceeded regulatory limits, and that Ingalls did not teach welders about the individual chemicals comprising a welding fume, but rather about the fume in general. This evidence might indicate a failure to provide a safe working environment or complete knowledge about the possible dangers of the working environment. Moreover, this court has, in the past, affirmed allocation of fault to an employer despite rejection of the sophisticated user defense. See In re Incident Aboard the D/B Ocean King, 813 F.2d 679, 687-89 (5th Cir.1987) (affirming allocation of 55% fault to employer despite rejection of sophisticated user defense), amended on other grounds, 877 F.2d 322 (5th Cir.1989). Accordingly, the district court’s improper refusal to instruct the jury on a joint-tortfeasor defense permitting allocation of fault to Ingalls was not harmless error, and we vacate the compensatory damages verdict. V Finally, the Manufacturers argue that district court erred in denying them motion for judgment as a matter" }, { "docid": "1911441", "title": "", "text": "dangers inherent in the use of high pressure pumps, it discharged this duty by providing Redman with instruction manuals that detailed the risks inherent in improper use of the spray pumps. Although the duty to warn end users of potential dangers is generally non-delegable, Indiana law does recognize an exception to this general rule. See Natural Gas Odorizing, 685 N.E.2d at 163. The “sophisticated intermediary” defense provides that there is no duty to warn “when the product is sold to a ‘knowledgeable or sophisticated intermediary’ whom the manufacturer has adequately warned.” Taylor v. Monsanto, 150 F.3d 806, 808 (7th Cir.1998). In order to determine whether the sophisticated intermediary defense applies, several factors are to be weighed: [T]he likelihood or unlikelihood that harm will occur if the intermediary does not pass on the warning to the ultimate user, the trivial nature of the probable harm, the probability or improbability that the particular intermediary will not pass on the warning and the ease or burden of the giving of the warning by the manufacturer to the ultimate user. Natural Gas Odorizing, 685 N.E.2d at 163 (citing Dole Food v. N.C. Foam Indus. Inc., 188 Ariz. 298, 935 P.2d 876, 880 (1996)). In addition, the intermediary must have a level of sophistication and knowledge equal to that of the manufacturer, and the manufacturer must be able to reasonably rely on the intermediary to warn the ultimate user. See id. at 164. Graco argues that it has satisfied its duty to warn by providing on-pump warnings and instruction manuals with the equipment it supplied. However, whether a manufacturer has adequately discharged its duty to warn to qualify for the sophisticated intermediary defense is a question for the trier of fact. See Dole Food, 935 P.2d at 881. In the case at hand, there are genuine issues of fact concerning the presence of labels on the pumps that Graco supplied, and whether it was reasonable for Graco to rely on Redman to warn the ultimate users of danger. Thus, Graco may not prevail on summary judgment on this issue. J. Proximate Cause Finally, Graco argues" }, { "docid": "18348441", "title": "", "text": "in defendant’s product. Rather, it involves a determination that the product is not safe in the absence of adequate warnings of the dangers inherent in its use. Because imposing the requirement of an adequate warning will rarely detract from the utility of a product, the New Jersey Supreme Court has determined that strict liability principles are fully applicable in failure to warn cases. Beshada, 90 N.J. at 202, 447 A.2d at 545, Freund, 87 N.J. at 242, 432 A.2d at 932. In this instance, the risks of not warning are obvious. There is no evidence that the utility of asbestos would be impaired by warnings. Nor is there evidence that warnings are either unfeasible or economically prohibitive. Thus, defendants’ attempt to avoid application of strict liability principles must fail. In the second portion of this summary judgment motion, plaintiffs seek to strike the interrelated defenses of sophisticated user and superseding cause. First, defendants claim that because they were selling their product to a knowledgeable consumer, they were absolved of a duty to warn and thus their product was not defective. Second, defendants contend that even if their product was defective because of their failure to warn, Owens-Corning’s subsequent failure to adequately protect its employees from hazardous asbestos exposure was a superseding cause of plaintiffs’ injuries. A close examination of the sophisticated user defense along with prior interpretations of New Jersey law has led me to conclude that this defense should be available as to plaintiffs’ negligence claims but not as to plaintiffs’ strict liability claims. Crucial to this determination is an understanding of the distinctions between strict liability and negligence. The primary difference is that negligence law focuses on the reasonableness of defendants’ conduct, while strict liability focuses on defendants’ product without regard to conduct or fault. As set forth in Freund: [Ujnder strict liability, the seller’s knowledge is presumed; it is “assume[d] the seller knew of the product’s propensity to injure as it did.” In negligence cases, such knowledge must be proved; the standard is what the manufacturer “knew or should have known.” 87 N.J. at 239, 432 A.2d" }, { "docid": "5542064", "title": "", "text": "duty to warn its employees thereof.”) (emphasis omitted). Subsequent to the enactment of the LPLA and this court’s decision in Davis one Louisiana intermediate appellate court has expressed uncertainty as to whether the LPLA perpetuates a sophisticated purchaser or user defense. Black v. Gorman-Rupp, 655 So.2d 717, 722 (La.Ct.App. 4th Cir.1995) (\"The LPLA does not explicitly address this ‘sophisticated user’ concept, but instead speaks of 'the ordinary user or handler of the product.’ At the present time, we need not decide ... the issue of whether the 'sophisticated user’ defense is carried forward under the LPLA ....”) (citations omitted). . Henkel Br. at 16-17; see also Davis, 975 F.2d at 174. . See Davis, 975 F.2d at 172-75. .Moreover, as we read LPLA § 2800.57(A) and (B) together, the manufacturer is relieved of the duty of providing an adequate warning about dangerous characteristics at the time the product left its control only if the user or handler at that time already knew or reasonably should have been expected to know of the characteristic and its danger. We do not base our decision herein on this statutory nuance, however, because there is no evidence that Columbian ever acquired actual or constructive knowledge of the dangerous characteristic prior to Mr. Swope's exposure to ozone on July 10, 1996. . La.Rev.Stat. Ann. § 9:2800.57(B)(2) (West 1997). . Bryan A. Gamer, A Dictionary of Modern Legal Usage 82 (1987). . According to Mr. Jordan, a \"turnaround” is \"when we take a unit down and go through the complete unit and take a look at all of the equipment and do maintenance work on all of the equipment.” . 975 F.2d 169 (5th Cir.1992). . Henkel Br. at 17. . La.Rev.Stat. Ann. 9:2800.57(B)(2) (West 1997) (emphasis added); accord Davis, 975 F.2d at 172-75 (implicitly recognizing that this and related issues must be submitted to the jury with proper instructions if reasonable minds could differ, as the court in Davis evaluated the adequacy of a jury instruction on the \"sophisticated purchaser” defense). . 8 F.3d 296, 300 (5th Cir.1993). . 648 So.2d 331, 337 (La.1995). ." }, { "docid": "1490061", "title": "", "text": "know of a particular danger, strict liability will not result from a failure to warn of that danger.”). Courts routinely employ an objective standard when determining whether the end user was aware of the product’s danger. See Johnson v. Am. Standard, Inc., 74 Cal.Rptr.3d 108, 179 P.3d at 916 (rejecting the argument that a supplier’s duty to warn “should turn on the individual plaintiffs actual understanding of the risk”). This standard requires “general predictions of the anticipated user population’s knowledge, not case-by-case hindsight examinations of the particular plaintiffs subjective state of mind.” Johnson v. Am. Standard, Inc., 74 Cal.Rptr.3d 108, 179 P.3d at 916. The sophisticated-intermediary or sophisticated-purchaser defense provides that “suppliers do not have a duty to warn employees or customers of knowledgeable industrial purchasers as to product-related hazards.” Lambert v. B.P. Prods. N. Am., Inc., 2006 WL 924988, at *2, 2006 U.S. Dist. LEXIS 16756, at *5 (S.D. Ill. 2006)(Murphy, C.J.)(citing Ritchie v. Glidden Co., 242 F.3d 713, 724 (7th Cir. 2001)). See Akin v. Ashland Chem. Co., 156 F.3d at 1037 (“This exception absolves suppliers of the duty to warn purchasers who are already aware or should be aware of the potential dangers.”)(citing O’Neal v. Celanese Corp., 10 F.3d 249, 251-52 (4th Cir. 1993)). In other words, suppliers have no duty to warn where the plaintiffs employer is a sophisticated user of the product and is in the best position to warn employees of the product’s dangers; the supplier remains under a duty to warn end-users, but it can rely on a knowledgeable employer to convey the warnings of the hazard. Lambert v. B.P. Prods. N. Am., Inc., 2006 WL 924988, at *2, 2006 U.S. Dist. LEXIS 16756, at *5 (citing Restatement (Second) of Torts § 388 cmt. n). For the exception to apply, “the intermediary must have knowledge or sophistication equal to that of the manufacturer, and the manufacturer must be able to rely reasonably on the intermediary to warn the ultimate consumer.” Triplett v. 3M, 422 F.Supp.2d 779, 786 (W.D. Ky. 2006)(Simpson, J.)(citation omitted). Reasonable reliance is typically determined by balancing the “reliability of the" }, { "docid": "5542035", "title": "", "text": "characteristic of the generator that allegedly caused bodily harm to Mr. Swope on July 10,1996. This is different from the issue we dealt with in Section II, viz., whether Columbian knew to a substantial certainty that its operations in general, over a period of time, were exposing Mr. Swope to harmful levels of ozone caused not only by purgation defects in generators, but also by other exposures, including during Columbian’s manufacture of carbon black using ozone after it had been produced by the generators. In support of its motion for summary judgment seeking dismissal of the Swopes’ products liability claim, Henkel argues that “it is sufficient that the manufacturer prove that the plaintiff (or his employer) should have known of the danger ... [and that] there is no duty under Louisiana law to warn an employee of a sophisticated user or purchaser of the dangers of a product.” Henkel relies exclusively upon a sophisticated user or purchaser defense to excuse Emery from its duty as manufacturer to use reasonable care to provide users and handlers of the product with an adequate warning about the product’s dangerous characteristics at the time it left the manufacturer’s control. The Louisiana Products Liability Act “establishes the exclusive theories of liability for manufacturers for damage caused by their products.” The only provision of the LPLA that affords a basis for arguing or guessing that manufacturers’ liability is limited by a sophisticated user or purchaser defense is section 2800.57(B)(2), which states that a manufacturer is not required to provide an adequate warning about his product if the “user or handler of the product already knows or reasonably should be expected to know of the characteristic of the product that may cause damage and the danger of such characteristic.” Consequently, as Henkel concedes, under any sophisticated intermediary defense the threshold burden is on the manufacturer to prove that the purchaser-intermediary knew or reasonably should have been expected to know of the dangerous characteristic of the product that caused the damage. In a jury trial, if reasonable minds could differ on that question, the court must submit the" }, { "docid": "17562093", "title": "", "text": "law clearly imposes a “should have known” standard as well, applicable to “knowledgeable purchasers,” Mayberry, 483 F.Supp. at 413. This is tantamount to the familiar “sophisticated purchaser defense” exception which is based upon the principles set forth in the Restatement (Second) of Torts. This exception absolves suppliers of the duty to warn purchasers who are already aware or should be aware of the potential dangers. See O’Neal v. Celanese Corp., 10 F.3d 249, 251-52 (4th Cir.1993); see also Davis v. Avondale Indus., 975 F.2d 169, 171 (5th Cir.1992) (a manufacturer is not required to provide an adequate warning about his product when the user or handler of the product already knows or reasonably should be expected to know of the characteristics of the product that may cause damage and the danger of such characteristics.) In Apperson v. E.I. du Pont de Nemours & Co., 41 F.3d 1103, 1108 (7th Cir.1994), the Seventh Circuit stated: “a duty to warn arises only when there is unequal knowledge with respect to the risk of the harm.” Because of the wealth of research available, the ability of the Air Force to conduct studies, and its extremely knowledgeable staff, we find that the Air Force easily qualifies as a “knowledgeable purchaser” that should have known the risks involved with low-level chemical exposure. Employees of the Air Force are also deemed to possess the necessary level of sophistication, so that defendants had no duty to warn the Air Force or its employees of the potential hazards. See Mayberry, 483 F.Supp. at 413. Based upon the foregoing, this court concludes from uneontroverted evidence viewed in a light most favorable to the plaintiffs that the district court’s decision granting defendants’ Motion for Summary Judgment should be affirmed. AFFIRMED. . The Constitutional language is that the Congress shall have power \"[t]o exercise exclusive Legislation,” see id., which has been construed to mean exclusive jurisdiction under 28 U.S.C. § 1331. See Mater v. Holley, 200 F.2d 123, 124-25 (5th Cir.1952). Noting that the United States has exclusive sovereignty in enclave areas, the Fifth Circuit said that it ‘‘would be incongruous" }, { "docid": "5542049", "title": "", "text": "that the trial court’s exclusion of warning evidence was harmless because (a) the gunpowder manufacturer “provided ample warning of the flammability and danger of the product,” (b) the plaintiff admitted he was well aware of the danger of firing a bullet into a container of gunpowder, and (c) the danger of pointing “a loaded high powered rifle at gunpowder, [is] well known and obvious to the ordinary consumer, especially one such as Hines, who is a sophisticated user of rifles and gunpowder.” The court’s use of the term “sophisticated user” in Hines is not relevant to the present case. In Todd Shipyards Cotp. v. Hercules, Inc., this court held that the district court was not clearly erroneous in finding after a full trial that the defendant manufacturer adequately warned Todd of the application and limitations of the product, thermal barrier cloth. The purchaser and his employees admitted to having knowledge of the danger that the cloth could burn, and the defendant introduced expert testimony that this danger was common knowledge in the industry. The court’s statement that the plaintiff was a “sophisticated user” was not especially meaningful or crucial to the holding. In Ducote v. Liberty Mutual Insurance Co., the trial court found, after a full trial, that the manufacturer’s warning that the electrical saw should be grounded while in use to protect the user from electric shock was adequate to warn an experienced carpenter of the danger of death by electrocution. The trial court based its decision on a finding that the warning was adequate, not on whether the manufacturer had been relieved of a duty to warn; the use of the term “sophisticated user” in the appellate opinion was unnecessary and irrelevant. Finally, the court in Scallan v. Duriron Co., applying pre-LPLA law, affirmed a summary judgment relieving the manufacturer of a duty to warn because the danger was obvious to an ordinary, not a sophisticated, user. Moreover, none of these cases presented an issue of whether there was a genuine issue of material fact for trial as to whether a purchaser already knew or reasonably should have" }, { "docid": "895581", "title": "", "text": "Cir.1988); Purvis v. PPG Industries, Inc., 502 So.2d 714, 722 (Ala.1987); Munoz v. Gulf Oil Co., 732 S.W.2d 62, 66 (Tex.App.Houston, 14th, 1987, n.r.e.). The adequacy of warnings to users is usually determined by the user’s level of sophistication. See, e.g., Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465-66 (5th Cir.1976); American Mutual Liability v. Firestone Tire & Rubber Co., 799 F.2d 993 (5th Cir.1986); Koonce v. Quaker Safety Products & Mfg., 798 F.2d 700, 719 (5th Cir.1986) (no duty to warn one “who may reasonably be assumed to have knowledge of the dangers involved” and “manufacturer may rely on a product user’s special expertise or knowledge”). I see no reason to gauge the adequacy of Chevron’s warning to Liquid Air under any other standard. I disagree with the majority in Donahue v. Phillips Petroleum, 866 F.2d 1008, 1013 (8th Cir.1989), that such an approach is improper because it “effectively would undercut ... strict liability.” That reasoning ignores the general rule that failure to warn is in any event essentially a negligence concept. See, e.g., Prosser and Keeton on Torts (5th ed. 1984) § 99 at 697. There is no reasonably feasible way in which a seller in bulk such as Chevron can warn anyone other than its purchaser. Accordingly, just as in the case of user directed warnings, a bulk seller should be under no duty to warn its purchaser of dangers the purchaser may reasonably be assumed to have knowledge of, and the bulk seller should be able to rely on the purchaser’s special expertise or knowledge. Here, however, there was essentially unrebutted summary judgment evidence tending to indicate that “nasal fatigue’’ was something that even an established distributor such as Liquid Air could not reasonably be assumed to know of. Consequently, I agree with the majority that, on the present record, in this respect “there is a genuine issue of material fact whether Chevron’s reliance on Liquid Air was reasonable.” Order. Jan. 28, 1992. Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO GARZA and DeMOSS, Circuit Judges. BY THE" }, { "docid": "16225199", "title": "", "text": "the supplier and had a duty to its employees to provide them a safe place to work, the supplier as a matter of law could reasonably rely on the employer to provide its employees adequate warnings or protection. See also Smith v. Walter C. Best, Inc., 927 F.2d 736, 740-44 (3d Cir.1990); Purvis v. PPG Industries, 502 So.2d 714, 720-21 (Ala.1987). This concept was embodied in the requested instruction’s requirement that Avondale be “one who by experience and expertise is aware of the possible health hazards associated with the use of the product, and who has an obligation to inform its employees of such potential health hazards.” Davis does not (and did not) question the accuracy of the requested instruction under Louisiana law. Moreover, the undisputed evidence reflects that one in the position of the suppliers would have reason to believe that Avon-dale, which had an extensive work place safety program including hazardous substance and brazing operations, would act to protect its employees. That makes particular sense where, as here, the potentially dangerous item is a consumable product. Engelhard and Aufhauser do not dispute that the charge as given did adequately inform the jury of the sophisticated user defense in the context of Davis as a sophisticated user. The crux of the disagreement between Davis and these defendants, then, and the critical issue in their cross-appeal, is whether the charge adequately informed the jury that if Engelhard and Aufhauser were successful in proving that Avondale was a sophisticated purchaser, then the defendants owed no duty to warn Davis. We agree with Engelhard and Aufhauser that the charge as given did not adequately instruct the jury on this legal theory. Though the charge addresses the sophisticated user/purchaser doctrine in the context of Avondale and Davis severally, it does not instruct that Engelhard and Auf-hauser owed no duty to warn Davis if Avondale was, itself, a sophisticated purchaser with a duty to warn Davis. At best, the charge as given instructed that Engelhard and Aufhauser owed no duty to Davis to warn her of dangerous conditions if she was a “knowledgeable user,”" }, { "docid": "532865", "title": "", "text": "1395 (retail distributor of propane well aware of dangerous properties of gas); Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464 (5th Cir.1976) (stripping crew and its employer were experienced professionals in the field of cleaning tanks that had contained benzene and knew of the dangers of benzene intoxication). Conversely, a manufacturer who sells to unspecialized users is not relieved of its normal duty to warn according to the reasonable and prudent person standard. Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir.1984). Under defendant’s conception of the sophisticated user defense, any user of a chemical product would be become sophisticated if they used the product often enough and had a “general idea” that the chemical was toxic. Such an expansive interpretation of this limited defense would transform even simple household users into chemical experts. See American Mutual Liability Ins. Co. v. Firestone Tire & Rubber Co., 799 F.2d 993, 994 (5th Cir.1986) (purchaser or user must have certain knowledge or sophistication before manufacturer is relieved of duty to warn, and normally this is a question of fact for the jury). The Coast Guard is not in the general trade or business of “benzene handling” and cannot reasonably be charged as a matter of law with any special expertise or knowledge concerning benzene’s carcinogenic properties. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1092-93 (5th Cir.1973) (dangers of asbestos not well enough known to insulation workers to reduce duty to warn), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974), cited in Pavlides, 727 F.2d at 339; Hall, 625 F.Supp. at 1520. Defendant also relies heavily on the argument that the Coast Guard violated OSHA regulations, and the Coast Guard safety manual incorporating those regulations, by failing to provide Mason with a safe workplace. What defendant neglects to recognize, however, is that neither federal nor Kansas law requires employers to protect against unknown dangers. Under Kansas law, the employer has a duty to protect only against dangers that are either known or could be discovered by the exercise of reasonable care. Riggs" }, { "docid": "20319281", "title": "", "text": "know” element that corresponds with the “foreseeability” element in a negligence action and for apportionment of fault. See Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924 (Miss.2006) (discussing foreseeability requirement in the allocation of fault and noting that “to be held negligent, an injury must be ‘reasonably foreseeable’ ” (citation omitted)). Thus, Jowers argues the sophisticated user defense instructed the jury to consider whether Ingalls could foresee Jowers’ injuries, a central element in the Manufacturers’ negligence theory. Because the jury rejected the sophisticated user defense and its constituent elements, Jowers contends the zero-fault allocation to Ingalls had no effect on the verdict. However, the jury’s rejection of the sophisticated user defense does not necessarily mean that they rejected any apportionment of fault to Ingalls. The district court instructed the jury on the three elements of the sophisticated user defense as follows, noting that the Manufacturers had to prove all three elements by a preponderance of the evidence: (1) [Ingalls] received adequate warnings and instructions from [the Manufacturers], or had the same level of expertise and knowledge about the dangers of welding fumes as did [the Manufacturers] themselves; (2) [Ingalls] could be reasonably expected to convey that information to Mr. Jowers; and (3) at the time [the Manufacturers] were selling to the employers the products that allegedly injured Mr. Jowers, [the Manufacturers] themselves had reason to believe that [Ingalls] had this knowledge and expertise about neurological injury and welding fumes, and had reason to believe that [Ingalls] would convey that information to Mr. Jowers. The jury could have rejected the sophisticated user defense on any one of these elements, not merely the foreseeability element. Thus, the jury readily could have decided that Ingalls was not sufficiently “sophisticated” to absolve defendants of any duty to warn, but had they been instructed on apportionment of fault, the jury may have determined that Ingalls bore some responsibility for Jowers’ injury. Indeed, the jury found Jowers 40% at fault for his own injuries. It is entirely conceivable that the jury may have found that Ingalls, which was responsible for providing Jowers with" }, { "docid": "5542063", "title": "", "text": "use it.”). .La.Rev.Stat. Ann. § 9:2800.57(A) (West 1997) (defining \"unreasonably dangerous because of an inadequate warning”). It deserves emphasis that Henkel did not move for summary judgment on other grounds, such as, e.g., that the 30-minute purgation instruction provided an adequate warning of that hazard, or that Emery did not know or reasonably could not have known of the dangerous characteristic of the generator. Consequently, we presume these factual issues to have been resolved in favor of the non-mov-ant, the Swopes, for purposes of our de novo summary judgment review. . La.Rev.Stat. Ann. § 9:2800.52 (West 1997). . Id. § 9:2800.57(B)(2); see also Davis v. Avondale Industries, Inc., 975 F.2d 169, 172-73 (5th Cir.1992)(citing LPLA § 9: 2800.57(B)(2) as statutory authority for an Erie guess \"that Louisiana courts would likely hold that in a setting such as this the product manufacturer owes no duty to the employee of a purchaser if the manufacturer provides an adequate warning of any inherent dangers to the purchaser or if the purchaser has knowledge of those dangers and the duty to warn its employees thereof.”) (emphasis omitted). Subsequent to the enactment of the LPLA and this court’s decision in Davis one Louisiana intermediate appellate court has expressed uncertainty as to whether the LPLA perpetuates a sophisticated purchaser or user defense. Black v. Gorman-Rupp, 655 So.2d 717, 722 (La.Ct.App. 4th Cir.1995) (\"The LPLA does not explicitly address this ‘sophisticated user’ concept, but instead speaks of 'the ordinary user or handler of the product.’ At the present time, we need not decide ... the issue of whether the 'sophisticated user’ defense is carried forward under the LPLA ....”) (citations omitted). . Henkel Br. at 16-17; see also Davis, 975 F.2d at 174. . See Davis, 975 F.2d at 172-75. .Moreover, as we read LPLA § 2800.57(A) and (B) together, the manufacturer is relieved of the duty of providing an adequate warning about dangerous characteristics at the time the product left its control only if the user or handler at that time already knew or reasonably should have been expected to know of the characteristic and its" }, { "docid": "1490060", "title": "", "text": "the sophisticated-user defense, when the user of a product knows or has reason to know of the product’s hazards, the supplier’s duty to warn is discharged. See Johnson v. Am. Standard, Inc., 43 Cal.4th 56, 74 Cal.Rptr.3d 108, 179 P.3d 905, 910 (2008)(“[S]ophisticated users need not be warned about dangers of which they are already aware or should be aware.”); Billsborrow v. Dow Chem., U.S.A., 177 A.D.2d 7, 579 N.Y.S.2d 728, 733 n.1 (1992)(stating that there is no duty to warn where the “user knows or has reason to know of the dangerous- propensities of the product independent of the information supplied to him by the manufacturer or distributor”)(citations omitted); Duncan v. Louisiana Power & Light Co., 532 So.2d 968, 972 (La. Ct. App. 1988)(“There is no duty to warn a sophisticated user of dangers of which he may be presumed to know through his familiarity with the product.”)(citations omitted); Grady v. Am. Optical Corp., 702 S.W.2d 911, 915 (Mo. Ct. App. 1985)(“If the user of a product knows or reasonably may be expected to know of a particular danger, strict liability will not result from a failure to warn of that danger.”). Courts routinely employ an objective standard when determining whether the end user was aware of the product’s danger. See Johnson v. Am. Standard, Inc., 74 Cal.Rptr.3d 108, 179 P.3d at 916 (rejecting the argument that a supplier’s duty to warn “should turn on the individual plaintiffs actual understanding of the risk”). This standard requires “general predictions of the anticipated user population’s knowledge, not case-by-case hindsight examinations of the particular plaintiffs subjective state of mind.” Johnson v. Am. Standard, Inc., 74 Cal.Rptr.3d 108, 179 P.3d at 916. The sophisticated-intermediary or sophisticated-purchaser defense provides that “suppliers do not have a duty to warn employees or customers of knowledgeable industrial purchasers as to product-related hazards.” Lambert v. B.P. Prods. N. Am., Inc., 2006 WL 924988, at *2, 2006 U.S. Dist. LEXIS 16756, at *5 (S.D. Ill. 2006)(Murphy, C.J.)(citing Ritchie v. Glidden Co., 242 F.3d 713, 724 (7th Cir. 2001)). See Akin v. Ashland Chem. Co., 156 F.3d at 1037 (“This" }, { "docid": "532864", "title": "", "text": "had been aware of this report, and had further acted instantaneously to bring this information to the attention of the Yorktown facility, it would have been too late to prevent all of Mason’s exposures to benzene during 1974 —and possibly many of his exposures during 1975. In short, defendant has failed to show that anyone having responsibility for the safety of Coast Guard personnel knew of benzene’s carcinogenic nature prior to and during the time when Mason was exposed to Texaco benzene. Defendant also makes several general allegations that the Coast Guard was a “sophisticated employer,” to whom Texaco owed no duty to warn. This argument must also fail. Courts have regularly excused manufacturers from the duty to warn where the purchaser/employer has, or can reasonably be expected to have, special expertise in handling a potentially dangerous product. See Mays, 233 Kan. at 59, 661 P.2d 348 (no duty to instruct employer who was experienced in the highly specialized business of hooking up oil and gas wells); Hittle, 219 Kan. at 639, 549 P.2d at 1395 (retail distributor of propane well aware of dangerous properties of gas); Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464 (5th Cir.1976) (stripping crew and its employer were experienced professionals in the field of cleaning tanks that had contained benzene and knew of the dangers of benzene intoxication). Conversely, a manufacturer who sells to unspecialized users is not relieved of its normal duty to warn according to the reasonable and prudent person standard. Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir.1984). Under defendant’s conception of the sophisticated user defense, any user of a chemical product would be become sophisticated if they used the product often enough and had a “general idea” that the chemical was toxic. Such an expansive interpretation of this limited defense would transform even simple household users into chemical experts. See American Mutual Liability Ins. Co. v. Firestone Tire & Rubber Co., 799 F.2d 993, 994 (5th Cir.1986) (purchaser or user must have certain knowledge or sophistication before manufacturer is relieved of duty to warn, and normally" }, { "docid": "895580", "title": "", "text": "Carter and Little — whom the majority recognizes were “trained, experienced welders” — were in a fourteen-foot deep barge hold that was fully enclosed except for the single hatch at the top. Under the heading “unusual fire and explosion hazards” the Liquid Air warnings stated that “propylene is heavier than air and may travel a considerable distance to a source of ignition.... Highly flammable vapors which are heavier than air may accumulate in low areas and/or spread along ground away from handling site.” As applied to Carter and Little, the warnings cannot reasonably be construed as containing some implied exception permitting them to assume they could safely remain in the enclosed fourteen-foot deep hold and conduct themselves as if it were gas-free simply because they no longer smelled the gas they had detected there only moments before. I add some observations respecting Chevron’s alternative defense that it, as a bulk seller, adequately warned Liquid Air, the intermediate distributor to whom it sold the propylene. See, e.g., Mason v. Texaco, Inc., 862 F.2d 242, 246-47 (10th Cir.1988); Purvis v. PPG Industries, Inc., 502 So.2d 714, 722 (Ala.1987); Munoz v. Gulf Oil Co., 732 S.W.2d 62, 66 (Tex.App.Houston, 14th, 1987, n.r.e.). The adequacy of warnings to users is usually determined by the user’s level of sophistication. See, e.g., Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 465-66 (5th Cir.1976); American Mutual Liability v. Firestone Tire & Rubber Co., 799 F.2d 993 (5th Cir.1986); Koonce v. Quaker Safety Products & Mfg., 798 F.2d 700, 719 (5th Cir.1986) (no duty to warn one “who may reasonably be assumed to have knowledge of the dangers involved” and “manufacturer may rely on a product user’s special expertise or knowledge”). I see no reason to gauge the adequacy of Chevron’s warning to Liquid Air under any other standard. I disagree with the majority in Donahue v. Phillips Petroleum, 866 F.2d 1008, 1013 (8th Cir.1989), that such an approach is improper because it “effectively would undercut ... strict liability.” That reasoning ignores the general rule that failure to warn is in any event essentially a negligence concept. See," } ]

[ { "docid": "22299391", "title": "", "text": "the party's brief or point argued orally, and should not contain argument. Fed. R.App. P. 28(j). We disregard the submission to the extent it includes material outside these limitations. See Davis v. U.S. Bancorp, 383 F.3d 761, 763 (8th Cir. 2004). In any event, the letter raises no issues of import because the Fair Sentencing Act contains no express statement that it is retroactive, and thus the \"general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed. See United States v. Brown, 2010 WL 3958760, -Fed.Appx. -, -- (8th Cir.2010) (unpub.); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir.2010). BRIGHT, Circuit Judge, concurring in part and dissenting in part. I concur in the denial of the motion to suppress and affirmance of Brewer’s convictions but dissent as to the sentence. Who could have guessed that President Eisenhower’s decision nearly sixty years ago to create a national system of interstate highways would have an effect on sentencing in Iowa today? Well, it has. In the Northern District of Iowa, cases arising on one side of the interstate go to one district court judge while cases arising on the other go to a second judge. And one active judge uses a 1:1 ratio between crack and powder cocaine when sentencing violators of crack cocaine laws while the other follows the sentencing guidelines— which here applied a 33:1 ratio. So in the Northern District of Iowa, the location of the crime relative to the interstate is a significant factor in crack cocaine sentencing. In my view, the difference in sentences between similar offenders should not depend on which side of the interstate a crime was committed or where the offender was arrested. See United States v. Ayala, 610 F.3d 1035, 1037-38 (8th Cir. 2010) (Bright, J., concurring) (discussing the need to reduce sentencing disparity in the post-Booker era). For Brewer’s crime of possessing, conspiring, and delivering approximately 150 grams of crack cocaine, the guidelines recommended a sentence" } ]

[ { "docid": "22140225", "title": "", "text": "not ... retroactive and thus does not apply to this case”); United States v. Brewer, 624 F.3d 900, 908 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed.”); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (“Like our sister circuits that have considered this issue, [ ] we conclude that the savings statute operates to bar the retroactive application of the FSA.”); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) (affirming ten-year mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains no express statement that it is retroactive nor can we infer any such express intent from its plain language”). We find this consistent line of authority to be compelling. IV. In conclusion, Appellants’ crimes are governed by the five-year statutory mandatory minimum sentence that was in effect at the time the crimes were committed. See 21 U.S.C. § 841(b)(l)(B)(iii) (2006). Accordingly, the sentences imposed by the District Court will be affirmed. . Section 846 of Title 21 U.S.C. provides that ”[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Thus, a conspiracy to distribute the minimum quantity of crack cocaine triggering a mandatory prison term of at least five years carries with it the same sentence as the substantive drug trafficking crime delineated in 21 U.S.C. § 841(b)(1)(B). . We consolidated the appeals of Reevey, No. 10-1812, and Williams, No. 10-1834, by order dated August 30, 2010. . The government asserts that Reevey and Williams failed to preserve" }, { "docid": "22448438", "title": "", "text": "at Doggins’s home. On August 16, 2007, after confirming that the rocks contained cocaine, the police obtained a search warrant for Doggins’s house. They executed the warrant the next day, discovering drugs and a collection of drug paraphernalia. Later testing showed that the drugs included 60.63 grams of crack cocaine and 14.65 grams of powder cocaine, but the initial police report indicated that there were 38.4 grams of crack cocaine and 27.069 grams of powder cocaine. II. On February 8, 2008, Doggins moved to suppress the drugs found at his house. After a hearing on April 30, 2008, the district court denied the motion, holding that the good-faith exception applied because the police were objectively reasonable in relying on the search warrant. On September 15, 2008, Doggins moved to reopen the suppression hearing, complaining for the first time that his attorney, Denise Benson, had not allowed him to testify. After hearing testimony from Benson and Doggins, the court concluded that Doggins had never asked to testify, so it denied the motion. On November 12, 2008, Doggins submitted letters allegedly showing that he had written Benson in March 2008 with a request to testify, and on February 20, 2009, he filed a final motion to reopen the suppression hearing. The court denied that motion as well, and the jury found Doggins guilty on all counts after a three-day trial. The court sentenced Doggins to the twenty-year statutory minimum for distribution of over fifty grams of cocaine base by a defendant with a prior drug felony. 21 U.S.C. § 841(b)(1)(A) (2009). III. Doggins contends that the district court erred by refusing to reopen the suppression hearing to allow him to testify. To prevail, he must show an abuse of discretion. United States v. Hassan, 83 F.3d 693, 696 (5th Cir.1996). According to Doggins, the court should have reopened the hearing because Benson refused to allow him to testify at the first hearing despite his repeated requests to do so. The basis of his argument is two handwritten letters to Benson in which he requested to testify, dated March 14 and 26, 2008." }, { "docid": "22225534", "title": "", "text": "much more than the presence or absence of an express statement extinguishing incurred liability.” Needless to add, the appellant’s briefs, written before the government’s supplemental briefs, generally accord with the new analysis. This court has been influenced, if not bound, by our prior determination that the FSA was not retroactively applicable, despite its beneficent intentions, to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011). Doggins reflected the common view of circuit courts. United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). We have considered carefully the opinions of circuits that have spoken more recently to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d 195, 199-200 (3rd Cir.2011); United States v. Rojas, 645 F.3d 1234, 1237-38 (11th Cir.2011), vacated, reh’g en banc granted, 659 F.3d 1055, 2011 WL 4552364 (11th Cir. Oct. 4, 2011); United States v. Douglas, 644 F.3d 39, 42-46 (1st Cir.2011); United States v. Fisher, 635 F.3d 336, 339-40 (7th Cir.2011); United States v. Acoff, 634 F.3d 200, 202-03 (2d Cir.2011); United States v. Spires, 628 F.3d 1049, 1055 (8th Cir.2011). Having done so, we are persuaded by those that have relied heavily on Section 109 and its application to this statute, which fails to contain an express statement repealing the prior sentencing structure retroactively. See Fisher, 635 F.3d at 340; Acoff, 634 F.3d at 202-03; Spires, 628 F.3d at 1055; see also United States v. Holcomb, No. 11-1558, 657 F.3d 445, 2011 WL 3795170 (7th Cir. Aug. 24, 2011) (Judge Easterbrook, denying rehearing en banc). We conclude that the penalties prescribed by the FSA do not apply to federal criminal sentencing for illegal conduct that preceded the FSA’s enactment. The sentences imposed by the district courts in each of these cases are AFFIRMED. . As to Tickles, this court determines the" }, { "docid": "22448447", "title": "", "text": "to sentence below a statutory minimum, however, so Doggins has already received the lowest possible sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.2008). Doggins argues that the court applied a statute that has been repealed. Congress passed the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, after Doggins was sentenced and had filed his appeal. As a result of that act, § 841(b)(1)(A) now requires that a defendant possess over 280 grams of crack cocaine, rather than 50 grams, for the 20-year mandatory minimum to apply. Dog-gins claims that the act is retroactive and that he should be resentenced under the new statute. That argument is without merit, however, because the Savings Statute, 1 U.S.C. § 109, provides that the reduction of any criminal sentence will not apply retroactively unless the relevant act expressly so states. The Fair Sentencing Act does not so state, so it does not apply retroactively. Doggins asserts that the Savings Statute does not apply to changes to remedies or procedures. See United States v. Blue Sea Line, 553 F.2d 445, 447-50 (5th Cir.1977). But, contrary to Doggins’s assertions, the Fair Sentencing Act imposes a change in sentencing, not a procedural or remedial change. Bell, 624 F.3d at 815 (“No procedures or remedies were altered by the passage of the FSA.”). The Fair Sentencing Act thus does not apply. The conviction and sentence are AFFIRMED. . On August 15, 2007, the police obtained an arrest warrant for Doggins, but that warrant was not executed. The police obtained both warrants with affidavits from Investigator Green, who had overseen the cocaine purchases. . By this time, Benson no longer represented Doggins, because the court had granted Dog-gins’s motion to appoint new counsel. . The sample introduced at trial had 60.63 grams of crack cocaine and 14.65 grams of powder cocaine. . See United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343," }, { "docid": "22448437", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Johnnie Doggins was convicted of two counts of distributing a controlled substance and one count of possession of over fifty grams of a mixture containing cocaine, all in violation of 21 U.S.C. 841(a)(1). He challenges the denial of his suppression motion, the sufficiency of the evidence, and the calculation of his sentence. He also argues that he received ineffective assistance of counsel during the suppression hearing and that the district court erred by refusing to reopen the suppression hearing to allow him to testify. I. On July 30, 2007, police used a confidential informant to buy cocaine from Dog-gins. The informant was driving with an undercover agent when they met Doggins in a parking lot. The informant approached Doggins’s car and bought one rock of cocaine for $20. As the informant was walking away, he turned around, went back to Doggins, complained about the quality of the rock, and purchased a second rock for $20. Both transactions were caught on videotape. Shortly thereafter, the undercover agent noticed the same car at Doggins’s home. On August 16, 2007, after confirming that the rocks contained cocaine, the police obtained a search warrant for Doggins’s house. They executed the warrant the next day, discovering drugs and a collection of drug paraphernalia. Later testing showed that the drugs included 60.63 grams of crack cocaine and 14.65 grams of powder cocaine, but the initial police report indicated that there were 38.4 grams of crack cocaine and 27.069 grams of powder cocaine. II. On February 8, 2008, Doggins moved to suppress the drugs found at his house. After a hearing on April 30, 2008, the district court denied the motion, holding that the good-faith exception applied because the police were objectively reasonable in relying on the search warrant. On September 15, 2008, Doggins moved to reopen the suppression hearing, complaining for the first time that his attorney, Denise Benson, had not allowed him to testify. After hearing testimony from Benson and Doggins, the court concluded that Doggins had never asked to testify, so it denied the motion. On November 12, 2008," }, { "docid": "22448448", "title": "", "text": "v. Blue Sea Line, 553 F.2d 445, 447-50 (5th Cir.1977). But, contrary to Doggins’s assertions, the Fair Sentencing Act imposes a change in sentencing, not a procedural or remedial change. Bell, 624 F.3d at 815 (“No procedures or remedies were altered by the passage of the FSA.”). The Fair Sentencing Act thus does not apply. The conviction and sentence are AFFIRMED. . On August 15, 2007, the police obtained an arrest warrant for Doggins, but that warrant was not executed. The police obtained both warrants with affidavits from Investigator Green, who had overseen the cocaine purchases. . By this time, Benson no longer represented Doggins, because the court had granted Dog-gins’s motion to appoint new counsel. . The sample introduced at trial had 60.63 grams of crack cocaine and 14.65 grams of powder cocaine. . See United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010)." }, { "docid": "22044983", "title": "", "text": "oral argument, his case falls squarely within the ambit of our recent opinion in United States v. Bell, 624 F.3d 803 (7th Cir.2010). In Bell, we were also dealing with a defendant who had been convicted and sentenced and had an appeal pending when the FSA went into effect. We found that the general federal savings statute, 1 U.S.C. § 109, applies to the FSA and prevents it from operating retroactively. 624 F.3d at 815. Fisher asks us to rethink Bell. However, he makes this suggestion based not on case law, but on his own suggested interpretations of the FSA and the application of the savings statute thereto. We are not persuaded and decline to stray from our recent precedent in Bell. We further note that our sister circuits have likewise found that the savings statute bars retroactive application of the FSA. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). The appeal of our other defendant, Edward Dorsey, presents a slight wrinkle because he was sentenced after the FSA went into effect. On June 3, 2010, Dorsey pled guilty to possessing 5.5 grams of crack cocaine with intent to distribute, in Kankakee, Illinois, on August 6, 2008. Because he had a prior felony drug convic tion, the mandatory minimum 10-year term was in play. Under the FSA, however, Dorsey would have had to possess at least 28 grams of crack in addition to the prior felony drug conviction to trigger the 10-year mandatory minimum. Dorsey was sentenced on September 10, 2010. At sentencing, the district judge declined to apply the FSA to Dorsey’s case, saying, “in this case the crime that you pled guilty to was ... two years before the President signed the legislation.” Dorsey was sentenced to 120 months. Dorsey argues that, even if the savings statute prevents retroactive application of the FSA, the relevant date for a retroactivity analysis is the date of sentencing, not the date of the commission of the criminal act, and therefore the FSA should have applied to him. Dorsey" }, { "docid": "22225533", "title": "", "text": "the government had to take the additional position, contrary to Tickles herself, that the retroactivity issue had been properly preserved in the trial court. On the merits, the government’s Supplemental Brief had to admit the simplicity of its original position, founded largely on the Savings Statute, 1 U.S.C. § 109, which holds that the repeal of a criminal statute does not extinguish liability for violations of that statute unless the repealing statute so states expressly. Because the FSA does not expressly extinguish liability computed under the former threshold quantities for crack cocaine offenses, the prior law should apply to all conduct that predated enactment of the FSA on August 3, 2010. The Supplemental Brief, in contrast, adopts the reasoning of a few courts that have applied FSA where the illegal conduct predated its enactment but the sentencing occurred afterward. The government now reads the “intent” of Congress as creating “a necessary implication” that the revised statutory penalties must supersede the former penalty scheme “in all future sentencings.” To the government, “the analysis [now] turns on much more than the presence or absence of an express statement extinguishing incurred liability.” Needless to add, the appellant’s briefs, written before the government’s supplemental briefs, generally accord with the new analysis. This court has been influenced, if not bound, by our prior determination that the FSA was not retroactively applicable, despite its beneficent intentions, to conduct that occurred pre-enactment. United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011). Doggins reflected the common view of circuit courts. United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). We have considered carefully the opinions of circuits that have spoken more recently to the question of the FSA’s retroactivity. See United States v. Dixon, 648 F.3d 195, 199-200 (3rd Cir.2011); United States v. Rojas, 645 F.3d 1234, 1237-38 (11th Cir.2011), vacated, reh’g" }, { "docid": "22536536", "title": "", "text": "its merits. Bullard contends that the FSA should be interpreted to apply retroactively to cases pending on direct appeal. The government responds that application of the General Savings Statute (the “Savings Statute”), 1 U.S.C. § 109, bars the FSA’s retroactive application. We agree and join all of our sister circuits to have addressed the issue in holding that the Savings Statute does indeed preclude retroactive application of the FSA. The Savings Statute provides: The repeal of any statute shall not have the effect to release or extinguish any penalty ... incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty.... 1 U.S.C. § 109 (emphasis added). This rule fully applies in the sentencing context and bars “application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense,” absent an express statement that the law is intended to be applied retroactively. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). We agree with all eight circuits that have ruled on the issue that the FSA contains no express statement of retroactivity, nor can any such intent be inferred from its language. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.2010); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010). Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable ...,” Pub.L. No. 111-220, evinces its intent to have the law" }, { "docid": "22140224", "title": "", "text": "of criminal proceedings. United States v. Caldwell 463 F.2d 590, 594 (3d Cir.1972) (citation omitted); see also Marrero, 417 U.S. at 664, 94 S.Ct. 2532 (explaining that defendant’s argument for leniency was “addressed to the wrong governmental branch. Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”). The general Savings Statute requires that any intent to “release or extinguish any penalty” under an existing statute be “expressly provide[d]” in the subsequent congressional enactment. The FSA does not contain an express statement that the increase in the amount of crack cocaine triggering the five-year mandatory minimum is to be applied to crimes committed before the FSA’s effective date. Nor does it provide that those sentenced before the FSA’s effective date are to be re-sentenced. Therefore, the FSA cannot be applied to Reevey and Williams. Our conclusion is consistent with the decision of every Court of Appeals to have addressed this issue. See United States v. Lewis, 625 F.3d 1224, 1229 (10th Cir.2010) (FSA “is not ... retroactive and thus does not apply to this case”); United States v. Brewer, 624 F.3d 900, 908 n. 7 (8th Cir.2010) (“[T]he Fair Sentencing Act contains no express statement that it is retroactive, and thus the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed.”); United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010) (“Like our sister circuits that have considered this issue, [ ] we conclude that the savings statute operates to bar the retroactive application of the FSA.”); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) (affirming ten-year mandatory minimum sentence under 21 U.S.C. § 841 “because the FSA took effect in August 2010, after appellant committed his crimes, [and] 1 U.S.C. § 109 bars the Act from affecting his punishment”); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010) (affirming sixty-month mandatory minimum sentence because the FSA “contains no express statement that it is retroactive nor can we infer any such" }, { "docid": "22448446", "title": "", "text": "Viewing the evidence in the light most favorable to the verdict, a rational jury could have found that the chemists’s report was sufficient to conclude Doggins possessed more than fifty grams of crack, despite the possible breach in the chain of custody. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Mann, 493 F.3d 484, 492 (5th Cir.2007). Finally, Doggins asserts that the estimate in the police report that there was 38.4 grams of crack cocaine and 27.069 grams of powder cocaine shows that the sample at trial was not the one recovered from his house. The estimate was merely a preliminary calculation that was later proven to be inaccurate. It does not provide sufficient reason to doubt the jury’s finding that there was more than 50 grams of crack cocaine taken from the house. VII. Doggins contends the district court erred by not considering the 18 U.S.C. § 3553(a) reasonableness factors when imposing the statutory mandatory minimum sentence. The district court does not have power to sentence below a statutory minimum, however, so Doggins has already received the lowest possible sentence. See United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.2008). Doggins argues that the court applied a statute that has been repealed. Congress passed the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372, after Doggins was sentenced and had filed his appeal. As a result of that act, § 841(b)(1)(A) now requires that a defendant possess over 280 grams of crack cocaine, rather than 50 grams, for the 20-year mandatory minimum to apply. Dog-gins claims that the act is retroactive and that he should be resentenced under the new statute. That argument is without merit, however, because the Savings Statute, 1 U.S.C. § 109, provides that the reduction of any criminal sentence will not apply retroactively unless the relevant act expressly so states. The Fair Sentencing Act does not so state, so it does not apply retroactively. Doggins asserts that the Savings Statute does not apply to changes to remedies or procedures. See United States" }, { "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": "22536537", "title": "", "text": "be applied retroactively. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). We agree with all eight circuits that have ruled on the issue that the FSA contains no express statement of retroactivity, nor can any such intent be inferred from its language. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Reevey, 631 F.3d 110, 114-15 (3d Cir.2010); United States v. Diaz, 627 F.3d 930, 931 (2d Cir.2010) (per curiam); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010). Bullard argues that Congress’s instruction in the FSA to the Sentencing Commission to “promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable ...,” Pub.L. No. 111-220, evinces its intent to have the law apply retroactively. We disagree. Congress’s desire to have the FSA implemented quickly in no way suggests that it also intended to have the Act apply retroactively to defendants sentenced before it was passed. Congress knows how to explicitly provide for retroactive application when it so desires. See, e.g., Velasquez-Gabriel v. Crocetti 263 F.3d 102, 106-07 (4th Cir.2001) (collecting certain statutory provisions that Congress expressly stated should be applied retroactively). Bullard also argues that the Savings Statute should not apply here, as by its terms it applies only to the “repeal” of a statute, not to an amendment. But we have squarely held that “although § 109 specifically refers only to repealed statutes, it also applies to statutes changed by amendment.” Korshin v. C.I.R., 91 F.3d 670, 673 n. 5 (4th Cir.1996). We find similarly unpersuasive Bullard’s argument that the FSA is a “remedial,” “error-correcting statute” that can apply on direct review even if not explicitly made retroactive. See Appellant’s Supp. Br. at 7; Rep. Br. at 14. The “error-correcting” exception to the Savings Statute is" }, { "docid": "23077262", "title": "", "text": "F.3d 803, 814-15 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam). The \"to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n. 5 (distinguishing a defendant in Dixon's position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group — defendants in Reevey's position — has no bearing on whether Congress intended to apply the FSA to another — defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir.2011) (concluding that a case similar to Reevey did not control whether the Act applies to defendants like Dixon). . Although the repealing laws in Great Northern and Marrero contained statute-specific saving clauses, the Supreme Court did not limit implied repeals to that instance. . District Courts within the Third Circuit have misinterpreted our decision in United States v. Jacobs, 919 F.2d 10 (3d Cir.1990), as requiring an express statement of retroactivity and prohibiting consideration of congressional intent in deciding whether to apply the FSA to defendants in Dixon's position. See, e.g., United States v. Dickey, 759 F.Supp.2d 654, 659-60 (W.D.Pa.2011); United States v. Burgess, No. 2:09-CR-150, 2010 WL 5437265, at *2 (W.D.Pa. Dec. 27, 2010); United States v. Crews, 755 F.Supp.2d 666, 671 (W.D.Pa. 2010). In Jacobs, the defendant argued that the legislative history of the repealed statute should be relevant to whether the new statute saved the old penalty. See 919 F.2d at 12. Rejecting this argument, Jacobs made clear that the legislative history of the repealed law was of no relevance to the analysis." }, { "docid": "15084450", "title": "", "text": "it. Reading the record in the light most hospitable to the government, and resolving credibility issues in favor of the verdict, we see more than enough evidence to support the jury's determination that Williams participated in a drug-trafficking conspiracy involving fifty or more grams of cocaine base. See United States v. Cruz-Rodriguez, 541 F.3d 19, 26 (1st Cir.2008) (reciting standard of review for assessing sufficiency). . (3.5 grams/week * seven weeks) + (forty grams) + (3.5 grams) = sixty-eight grams. The seven-week figure is presumably based on the assumption that there are four weeks in each month and that the baseline time period, from which one week is subtracted, is two months. . (3.5 grams/week) * (4.3 weeks/month) * (three months) + (forty grams) = 85.15 grams. . The government does not challenge the court’s sixty-month downward variance. . In addition to his sentencing argument described in text, he appears to argue that Churchill was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny; but that is a claim that must first be made in the district court under 28 U.S.C. § 2255. See, e.g., United States v. Gonzalez-Vazquez, 219 F.3d 37, 42 (1st Cir.2000) (reciting rule, collecting cases, and recognizing an exception not applicable here). . See United States v. Reevey, — Fed.Appx. -, ----, 2010 WL 5078239, at *2-*4 (3d Cir.2010) (unpublished); United States v. Wilson, - Fed.Appx. -, -, 2010 WL 4561381, at *2 (4th Cir.2010) (unpublished); United States v. Lewis, 625 F.3d 1224, 1228-29 (10th Cir.2010); United States v. Glover, -Fed.Appx.-,-, 2010 WL 4250060, at *2 (2d Cir.2010) (unpublished); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (dicta); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Hall, — Fed. Appx. -, --, 2010 WL 4561363, at *3 (9th Cir.2010) (unpublished)." }, { "docid": "15673724", "title": "", "text": "cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans.”); id. at SI0491 (statement of Sen. Richard Durbin) (\"There is widespread and growing agreement that the Federal cocaine and sentencing policy in the United States today is unjustified and unjust.”). . The initial bill proposed a 1:1 crack/powder sentencing ratio, 155 Cong. Rec. S10490 (daily ed. Oct. 15, 2009) (statement of Sen. Richard Durbin). The Senate Judiciary Committee amended the bill to the 18:1 ratio as a \"bipartisan compromise.” 156 Cong. Rec. S1681 (daily ed. Mar. 17, 2010) (statement of Sen. Richard Durbin). . See United States v. Glover, 398 Fed.Appx. 677, 680 (2d Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1582, 179 L.Ed.2d 490 (2011); United States v. Reevey, 631 F.3d 110, 113-15 (3d Cir.2010); United States v. McAllister, 401 Fed.Appx. 818, 820 n. * (4th Cir.2010) (per curiam); United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1706, 179 L.Ed.2d 637 (2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2121, 179 L.Ed.2d 913 (2011); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011); United States v. Hall, 403 Fed.Appx. 214, 217 (9th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1790, 179 L.Ed.2d 660 (2011); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam), cert. denied, - U.S. -, 131 S.Ct. 1833, 179 L.Ed.2d 788 (2011)." }, { "docid": "23077261", "title": "", "text": "reversed its position on the applicability of the FSA to Dixon. Before the District Court and, until now, before this Court, the Government argued that the Act should not apply to defendants whose offense conduct predated the FSA but were sentenced after. Having determined that its previous analysis of the Act was in error, the Government now agrees with the position set forth by Dixon in this appeal. . As a threshold issue, we determine that our previous decision in United States v. Reevey, 631 F.3d 110 (3d Cir.2010), upon which the District Court relied, does not resolve the question presented in this appeal. When considering whether a law applies retroactively, the question is always \"to whom”? In Reevey, we held that it did not apply retroactively to the group comprised of defendants who committed their crimes and who were sentenced before the Act was enacted. In doing so, we joined every Court of Appeal to consider the issue. See United States v. Doggins, 633 F.3d 379, 384 (5th Cir.2011); United States v. Bell, 624 F.3d 803, 814-15 (7th Cir.2010); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam). The \"to whom” question here is different. The issue in this case is whether the FSA applies to the separate group of defendants who committed their crimes before the Act was enacted, but who were sentenced afterwards. We specifically abstained from answering this question in Reevey. 631 F.3d at 115 n. 5 (distinguishing a defendant in Dixon's position from Reevey because Reevey, unlike Dixon, committed his crime and was sentenced before the FSA was enacted). Our answer to the question whether Congress intended to apply the FSA to one group — defendants in Reevey's position — has no bearing on whether Congress intended to apply the FSA to another — defendants in Dixon’s position. See United States v. Fisher, 635 F.3d 336, 339 (7th Cir.2011) (concluding" }, { "docid": "22440739", "title": "", "text": "is relevant here, the minimum quantity of crack required to trigger the mandatory minimum was increased from 5 grams to 28 grams. Compare 21 U.S.C. § 841(b)(l)(B)(iii) (2008) with 21 U.S.C. § 841 (b)(1)(B)(iii) (2010). If Bell were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions; he would be subject only to a 30-year (360-month) maximum. See 21 U.S.C. § 841(b)(1)(C) (2010). Three days after the FSA was enacted, Bell, who had not previously challenged any aspect of his sentence, filed a pro se motion for leave to file a supplemental brief regarding the application of the FSA to his case. We granted Bell’s motion, ordered his court-appointed counsel to file a brief on his behalf, and ordered the government to file a response. After reviewing the ably prepared briefs of both parties, we conclude that the FSA is not retroactive and therefore does not apply to Bell’s case. The general federal savings statute, 1 U.S.C. § 109, provides that “[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act so shall expressly provide.... ” “[T]he saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense.” Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 661, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). We have also recognized that the application of the savings statute extends beyond mere repeals and reaches amendments to criminal statutes as well, see United States v. Stillwell, 854 F.2d 1045, 1047-48 (7th Cir.1988), unless the new law by its terms applies retroactively. So if the savings statute applies to the FSA, the FSA in turn cannot operate retroactively to reduce Bell’s sentence. Like our sister circuits that have considered this issue, see United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir.2010), we conclude that the savings statute" }, { "docid": "22044982", "title": "", "text": "defendants in this case, is that the FSA is not retroactive. It applies only to defendants who are sentenced based on conduct that took place after August 3, 2010. Anthony Fisher pled guilty in Wisconsin, in February 2010, to one count of conspiracy to distribute crack. A presentence report stated that he was responsible for between 150 and 500 grams of crack. It recommended a 140 to 175 months guideline range. Fisher disputed this, claiming he was responsible for only 50 to 150 grams of crack and the proper guideline range was 120 to 150 months. The district judge declined to resolve the quantity dispute and sentenced Fisher to the 120-month mandatory minimum based on 50 or more grams of crack. Judgment was entered on June 2, 2010. Fisher filed a notice of appeal the next day. Fisher claims that the FSA should apply because his appeal was pending on August 3, 2010, when the Act went into effect. Fisher asks us to apply the FSA retroactively to his sentence. However, as he acknowledged at oral argument, his case falls squarely within the ambit of our recent opinion in United States v. Bell, 624 F.3d 803 (7th Cir.2010). In Bell, we were also dealing with a defendant who had been convicted and sentenced and had an appeal pending when the FSA went into effect. We found that the general federal savings statute, 1 U.S.C. § 109, applies to the FSA and prevents it from operating retroactively. 624 F.3d at 815. Fisher asks us to rethink Bell. However, he makes this suggestion based not on case law, but on his own suggested interpretations of the FSA and the application of the savings statute thereto. We are not persuaded and decline to stray from our recent precedent in Bell. We further note that our sister circuits have likewise found that the savings statute bars retroactive application of the FSA. See United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir.2010). The appeal of our other defendant, Edward Dorsey, presents a slight wrinkle" }, { "docid": "14222201", "title": "", "text": "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 2008); Bell, 624 F.3d at 814 (Seventh Circuit stating that “[i]f Bell were sentenced today under the FSA, his distribution of 5.69 grams of crack cocaine would be insufficient to trigger the mandatory minimum sentencing provisions”); United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir.2010) (stating that the defendant first submitted a letter requesting re-sentencing under the FSA on August 27, 2010, where the record indicates that defendant was originally sentenced in November 2009); United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir.2010) (“[The FSA] is not, however, retroactive and thus does not apply to this case. It does, on the other hand, relegate this case to a relatively short shelf-life, inasmuch as defendants being sentenced henceforth will be sentenced under a different applicable ratio.” (emphasis added)). But see United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011) (holding that the relevant date for the FSA “is the date of the underlying criminal conduct, not the date of sentencing,” but stating, “[w]e have sympathy for the two defendants here, who" } ]

[ { "docid": "9501337", "title": "", "text": "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). Plaintiffs ask this court to declare that the Range Improvement Agreement remains in full force and effect and to order the Government to perform its responsibilities pursuant to that Agreement (i.e., reconstruction of the boundary line fence). This is a type of remedy, however, that historically has not been available in this forum under the Tucker Act: “This court, however, does not have general equitable jurisdiction in matters of contracts. The jurisdiction of the United States Court of Federal Claims encompasses only money claims against the United States.” Nicholson v. United States, 29 Fed.Cl. 180, 185 (1993) (citing United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969)). Assuming for the sake of argument that the Agreement is enforceable as a contract, the court nevertheless lacks subject matter jurisdiction over this suit because the claim is anticipatory. It is not for money, but for specific performance. Plaintiffs cite a long line of Tenth Circuit opinions for the proposition that the exclusive jurisdiction of the Court of Federal Claims cannot be avoided by framing a complaint to appear to seek only injunctive, mandatory, or declaratory relief, when, in reality, the thrust of the suit is one seeking money from the United States. Eagle-Picher Indus. v. United States, 901 F.2d 1530, 1532-33 (10th Cir.1990); Rogers v. Ink, 766 F.2d 430, 434-35 (10th Cir.1985); United States v. City of Kansas City, Kansas, 761 F.2d 605, 608-09 (10th Cir.1985); New Mexico v. Regan, 745 F.2d 1318, 1322 (10th Cir. 1984); Amalgamated Sugar Co. v. Bergland, 664 F.2d 818, 824 (10th Cir.1981); Alamo Navajo Sch. Bd., Inc. v. Andrus, 664 F.2d 229, 233 (10th Cir.1981). According to these decisions, “the test for determining if a case belongs in the Claims Court is whether or not the prime objective or essential purpose of the complaining parly" } ]

[ { "docid": "19301913", "title": "", "text": "meaning of “procurement” under the CDA is “the acquisition by purchase, lease or barter, of property or services for the direct benefit or use of the Federal Government_” New Era Constr. v. United States, 890 F.2d 1152, 1157 (Fed.Cir.1989), rehearing denied, (1990) (citation omitted) (emphasis in original). Intangible forms of consideration, such as bailment contracts, contracts for uranium enrichment services, and guarantees of government money orders, do not qualify as “procurements” under the CDA. See Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006) (ruling that an alleged bailment contract for the possession of electronic transmission equipment did not involve a contract for the procurement of goods or services); Fl. Power & Light Co., 307 F.3d at 1373-74 (holding that the Court of Federal Claims did not have CDA jurisdiction over a contract in which utility companies delivered unenriched uranium to the Government, the Government enriched the material, and the Government delivered the enriched uranium to another utility); Arbitraje Casa de Cambio, S.A. de CV. v. United States, 79 Fed.Cl. 235, 240 (2007) (concluding that a contract in which the plaintiff cashed government money orders from payees in exchange for the Government’s promise to repay the money was not for the “direct benefit or use” of the Government and therefore did not fall under the CDA). Defendant has accurately stated the black letter law regarding the CDA but has mis-characterized the nature of Plaintiffs claim. Count 1 seeks relief from Defendant based on an implied-in-fact contract theory that the PCO agreed to facilitate and obtain payment from the Iraqi Government in exchange for Plaintiffs performance of its obligations under the EFIC contract. The Court has Tucker Act jurisdiction over the claim because it alleges an implied-in-fact contract with the United States. See 28 U.S.C. § 1491(a)(1). However, the CDA does not apply because Count 1 alleges a contract for a service provided by the Government but from which the Government did not directly benefit. Plaintiff asserts that the PCO induced Laudes to enter into the underlying EFIC contract with the Iraqi Government based on this promise to" }, { "docid": "801850", "title": "", "text": "to the United States Court of Federal Claims.”); see also 28 U.S.C. § 1491(a)(2) (“The Court of Federal Claims shall have jurisdiction 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 [, 41 U.S.C. § 609(a)(1)].”); James M. Ellett Constr. Co. v. United States, 98 F.3d 1537, 1541-42 (Fed.Cir.1996); Case, Inc. v. United States, 88 F.3d 1004, 1008-09 (Fed.Cir.1996). In this instance, the contracting officer did not issue a final decision on Metric’s claim within the time required by the CDA, and thus the claim is deemed denied. See 41 U.S.C. § 605(c)(5); United Partition Sys., Inc. v. United States, 59 Fed.Cl. 627, 634-35 (2004). Consequently, the court has jurisdiction over Metric’s claims. Standards for Decision In all contracts, American common law “imposes upon each party a duty of good faith and fair dealing in its performance and in its enforcement.” Restatement (Second) of Contracts § 205 (1981); see also Centex Corp. v. United States, 395 F.3d 1283, 1304 (Fed.Cir.2005). This duty among other things encompasses the “obligation ‘that neither party will do anything that will hinder or delay the other party in performance of the contract.’” Essex Electro Eng’rs v. Danzig, 224 F.3d 1283, 1291 (Fed.Cir.2000) (quoting Luria Bros. v. United States, 177 Ct.Cl. 676, 369 F.2d 701, 708 (1966)); see also Restatement (Second) of Contracts § 205 emt. d. Breach of these common law duties can be the basis for claims of compensable delay and disruption, entitling the affected party to an equitable adjustment. See Aydin Corp. v. Widnall, 61 F.3d 1571, 1577 (Fed.Cir.1995) (“Where it requires a constructive change in a contract, the government must fairly compensate the contractor for the costs of the change.”) (citing J.B. Williams Co. v. United States, 196 Ct.Cl. 491, 450 F.2d 1379, 1394 (1971)); Ets-Hokin Corp. v. United States, 190 Ct.Cl. 668, 420 F.2d 716, 720 (1970) (“[W]here ... the contracting officer, without issuing a formal change order, requires the contractor to perform work or to utilize materials which the contractor regards as being beyond the requirements" }, { "docid": "17787128", "title": "", "text": "claims against the United States. Nutrite Corp. v. United States, 43 Fed.Cl. 297, 305 (1999) (citing Berdick v. United States, 222 Ct.Cl. 94, 100, 612 F.2d 533, 536 (1979)). See also Brown v. United States, 105 F.3d 621, 623 (Fed.Cir.1997); Golden Pacific Bancorp. v. United States, 15 F.3d 1066, 1069 n. 8 (Fed.Cir.1994). It is firmly established that misrepresentation is a tort. See United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961); Somali Development Bank v. United States, 205 Ct.Cl. 741, 508 F.2d 817, 821 (1974); Aetna Casualty and Surety Company v. United States, 228 Ct.Cl. 146, 655 F.2d 1047, 1059 (1981). Thus, for this court to hear Count IV of Schweiger’s claim alleging fraudulent misrepresentation, it must fall within an exception to the jurisdictional bar to this court hearing “claims sounding in tort.” As the government acknowledges, there is an exception to this court’s jurisdictional bar on hearing claims sounding in tort. Jurisdiction is proper in this court over claims of “tortious breach” of contract. Morris v. United States, 33 Fed.Cl. 733, 742 (1995) (citing L’Enfant Plaza Properties v. United States, 645 F.2d 886, 892, 227 Ct.Cl. 1 (1981)). See also Summit Contractors, Inc. v. United States, 22 Cl.Ct. 54, 56 (1990) (“[T]he comí; has repeatedly asserted jurisdiction over claims based on tortious breach of a government contract.”) This exception applies where the plaintiffs tort claim is “ ‘entirely dependent on, and in fact evolves from the contract.’ ” CTA Incorporated, v. United States, 44 Fed.Cl. 684, 698 (1999) (quoting Dureiko v. United States, 42 Fed.Cl. 568, 582 (1998)). See also Edwards v. United States, 19 Cl.Ct. 663, 669 (1990). Where the plaintiff has stated breach of contract claims, “the fact that the alleged breach is also tortious does not foreclose Tucker Act jurisdiction.” Wood v. United States, 961 F.2d 195, 198 (Fed.Cir.1992) (citation omitted). In this case, Schweiger’s claim of fraudulent misrepresentation meets this test, as it is in substance a “claim for breach of contract by misrepresentation.” Badgley v. United States, 31 Fed.Cl. 508, 514 (1994). As discussed supra, Schweiger has stated" }, { "docid": "11970566", "title": "", "text": "must be dismissed pursuant to Rule 12(b)(1) because a claim based on unjust enrichment is equitable in nature and falls outside of this court’s jurisdiction. Defendant is correct in so describing the limits of this court’s jurisdiction. As this court’s predecessor, the Court of Claims explained in Aetna Casualty & Surety v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047, 1059-60 (1981), that “[a] claim based on unjust enrichment ... proceed[s] from a perception that a party ought to be bound rather than ... agreed to be bound. [An] unjust enrichment ... theory of recovery is therefore based upon a contract implied in law, over which this court has not been given jurisdiction” (emphasis in original) (citations omitted). Plaintiff does not dispute that this court lacks jurisdiction over claims based on unjust enrichment. Instead, plaintiff, in effect, contends that the court should interpret the instant claim as not being founded on unjust enrichment or, in the alternative, permit plaintiff to amend its complaint so as to present a new theory of recovery based upon traditional breach of contract principles. Plaintiff argues that although defendant never actually requested the overtime HVAC services, the government should be deemed to have requested the services and therefore should be held liable under the lease’s overtime services provision. As to plaintiff’s first alternative, the language in the complaint is unambiguous. The complaint rests on a theory of unjust enrichment and cannot reasonably be interpreted otherwise. As to plaintiff’s second alternative, the court would permit plaintiff to amend its complaint if plaintiff could present an alternative theory of recovery that falls within this court’s jurisdiction and on which plaintiff potentially could prevail. But, for the reasons set forth below, even assuming that the court would have jurisdiction over plaintiff's proposed traditional breach of contract claim, such a claim would not survive summary judgment. A grant of summary judgment is appropriate where there is no genuine issue of material fact (i.e., a fact that might affect the outcome of the suit) and the moving party is entitled to judgment as a matter of law. Anderson v." }, { "docid": "9430422", "title": "", "text": "by which the non-moving party might prevail, the court must deny the motion. W.R. Cooper General Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988) (citing Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686). The non-moving party, however, bears the burden of establishing jurisdiction. Reynolds v. Army & Air Force Éxch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). Defendant argues that the court lacks subject matter jurisdiction because plaintiffs failed to comply with the requirements of the Contract Disputes Act, 41 U.S.C. §§ 601-613 (1994) (the “CDA”). Defendant first contends that plaintiffs did not submit a valid claim to the appropriate contracting officer. Defendant also asserts that plaintiffs’ failure to certify the alleged claim constitutes an additional jurisdictional bar. According to defendant, plaintiffs’ failure to comply with the requirements of the CDA renders any purported final decision by a contracting officer invalid and precludes this court from entertaining plaintiffs’ claim. 1. Validity of claim As sovereign the United States “is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941) (citations omitted). Any waiver of sovereign immunity must be unequivocally expressed and may not be implied. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). The CDA serves as such a waiver. However, the court must take care “not to expand [the government’s] liability beyond that which was explicitly consented to by Congress.” Fidelity Constr. Co. v. United States, 700 F.2d 1379,1387 (Fed.Cir.1983). The CDA permits this court to entertain claims involving “any express or implied contract for ... the procurement of property, other than real property in being.” 41 U.S.C. § 602(a)(1). For the court to have proper jurisdiction under the CDA, there must be “both a valid claim, ... and a contracting officer’s final decision on that claim.” James M. Ellett Const. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed.Cir.1996). To comply" }, { "docid": "17801372", "title": "", "text": "26 Cl.Ct. 146, 153 (1992), rev’d on other grounds, 998 F.2d 950 (Fed.Cir. 1993). One of a government contractor’s reasonable, legitimate expectations is that Congress will not, through targeted legislation, eliminate its opportunity to reap its share of the benefits it anticipates deriving from the contract. The implied covenant of good faith and fair dealing protects this reasonable expectation. Indeed, as this court has noted, “the purpose of the covenant is to ‘protect the reasonable expectations of [contracting] parties.’ ” Barseback Kraft AB v. United States, 36 Fed.Cl. 691, 706 (1996) (quoting Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1267 (10th Cir.1988)), aff'd, 121 F.3d 1475 (Fed.Cir.1997); see also United States v. Basin Elec. Power Coop., 248 F.3d 781, 797 (8th Cir.2001); Jarvis v. United States, 43 Fed.Cl. 529, 534 (1999). Plaintiffs here legitimately expected that the covered asset loss deduction would not be eliminated through retroactive legislation targeted specifically at assistance agreements entered into by the FSLIC and the FHLBB. This expectation was protected by the implied covenant of good faith and fair dealing that was contained in the Assistance Agreement. When the Guarini legislation was enacted into law in August 1993, the United States breached this implied covenant and became liable for contract damages. II. Other Counts Plaintiffs’ remaining counts can be dismissed. Plaintiffs’ takings claims, Counts II and VIII, are “conceptually foreclosed,” Plaintiffs in Winstar-Related Cases v. United States, 37 Fed.Cl. 174, 187 n. 9 (1997), aff'd sub nom., Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874 (Fed.Cir.1998), by our finding of contract breach. Plaintiffs’ due process claim, Count III, is outside the subject matter jurisdiction of this court. See N.Y. Power Auth. v. United States, 42 Fed. Cl. 795, 801 (1999). Plaintiffs’ unjust enrichment claim, Count IV, to the extent it is independent of plaintiffs’ breach of contract claim, is also outside the subject matter jurisdiction of this court, see Aetna Cas. & Sur. Co. v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047(1981); Frank & Breslow, LLP v. United States, 43 Fed.Cl. 65, 68 (1999); Dolmatch Group," }, { "docid": "9430423", "title": "", "text": "of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941) (citations omitted). Any waiver of sovereign immunity must be unequivocally expressed and may not be implied. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). The CDA serves as such a waiver. However, the court must take care “not to expand [the government’s] liability beyond that which was explicitly consented to by Congress.” Fidelity Constr. Co. v. United States, 700 F.2d 1379,1387 (Fed.Cir.1983). The CDA permits this court to entertain claims involving “any express or implied contract for ... the procurement of property, other than real property in being.” 41 U.S.C. § 602(a)(1). For the court to have proper jurisdiction under the CDA, there must be “both a valid claim, ... and a contracting officer’s final decision on that claim.” James M. Ellett Const. Co. v. United States, 93 F.3d 1537, 1541-42 (Fed.Cir.1996). To comply with the requirements of the CDA, “[a]ll claims by a contractor against the government relating to a contract shall be in writing and shall be submitted to the contracting officer for a decision.” 41 U.S.C. § 605(a). The question of this court’s jurisdiction therefore first turns on whether or not plaintiffs have submitted a valid claim. See James M. Ellett Const. Co., 93 F.3d at 1542. While the CDA places great emphasis on whether a claim has been made, it does not define what constitutes a claim. Accordingly, the court must examine the Federal Acquisitions Regulation (the “FAR”), under which the CDA was implemented, the language of the contract at issue, and the relevant facts. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed.Cir.1995). FAR § 33.201, 48 C.F.R. § 33.201 (1995), defines a claim as “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or" }, { "docid": "7183412", "title": "", "text": "Although plaintiff does not expressly employ terms such as “declaratory judgment” or “specific performance,” it appears that these remedies are central to the relief it seeks from this court. This conclusion is buttressed by the fact that plaintiffs complaint is styled “Vanalco’s Complaint and Request for Injunctive Relief.” Also telling is the fact that Vanalco based its request for expedited review on its belief that “[i]f this motion is not granted it is likely that the federal power subscription window will close before this court can examine the merits of the contract claims.” Memorandum in Support of Vanalco’s Motion to Establish Jurisdiction at 1. Assuming, arguendo, that this court has jurisdiction to reach the merits of the contract claims, there is no relief other than equitable relief that would minimize the effect of the September 30th (now October 31st) closure of the subscription window. Therefore, it appears that plaintiffs claim does seek equitable relief. As the defendant correctly points out, this court does not have general equitable jurisdiction over contracts. Logan Canyon Cattle Assoc. v. United States, 34 Fed.Cl. 165, 168 (1995) (quoting Nicholson v. United States, 29 Fed.Cl. 180, 185 (1993)). See also United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Rig Masters, Inc. v. United States, 42 Fed.Cl. 369, 372 (1998) (stating “[i]t is well established that this court does not have jurisdiction over claims for specific performance”); Hoch v. United States, 31 Fed.Cl. 111, 114 (1994) (stating “the Court of Federal Claims was created under Article I of the Constitution and has no equitable powers”); Blackwell v. United States, 23 Cl.Ct. 746, 750 (1991) (stating this court does not have jurisdiction over claims for specific performance); Massachusetts Bay Transp. Auth. v. United States, 21 Cl.Ct. 252, 262, 1990 WL 107736 (1990) (stating this court generally lacks authority to grant requests for declaratory judgments); Edwards v. United States, 19 Cl.Ct. 663, 668 n. 5 (1990) (stating this court has no jurisdiction over equitable matters). Accordingly, this court does not have general equitable jurisdiction to entertain plaintiffs claims insofar as they" }, { "docid": "10733869", "title": "", "text": "and federal, consistently dismiss claims for breach of the implied duty of good faith and fair dealing when those claims are redundant of breach of contract claims. See L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 434 n. 17 (2d Cir.2011); Harris, 310 F.3d at 81; Schlather, Stumbar, Parks & Salk, LLP v. One Beacon Ins. Co., No. 5:10-cv-0167 (NPM/DEP), 2011 WL 222235, at *4 (N.D.N.Y. Jan. 21, 2011); Kosher Provisions, 2005 WL 1890039, at *3-4; Ari & Co., 273 F.Supp.2d at 522 (making this observation); TADCO, 93 A.D.3d at 620, 941 N.Y.S.2d at 104; Bostany v. Trump Org. LLC, 73 A.D.3d 479, 481, 901 N.Y.S.2d 207, 208 (2010); Levi v. Utica First Ins. Co., 12 A.D.3d 256, 257-58, 786 N.Y.S.2d 3, 5 (2004); see also Glen Banks, New York Contract Law § 11:16 (2006). Because Count II is redundant of Count I, Count II fails to state a claim for breach of the implied duty of good faith and fair dealing. Count II will be dismissed with prejudice. 4. Count III: Unjust Enrichment Count III, the claim for unjust enrichment, will also be dismissed. Count III fails to state a claim for unjust enrichment because the debtor has not alleged that DiamondRock has been unjustly enriched at the debtor’s expense. An unjust enrichment claim is an equitable claim, quasi-contractual in nature, and exists to prevent injustice. IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 142, 879 N.Y.S.2d 355, 907 N.E.2d 268, 274 (2009); see also Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561, 572, 807 N.Y.S.2d 583, 841 N.E.2d 742, 746 (2005). The claim rests on the principle that “a person shall not be allowed to enrich himself unjustly at the expense of another.” Georgia Malone & Co. v. Rieder, 19 N.Y.3d 511, 516, 950 N.Y.S.2d 333, 973 N.E.2d 743, 746 (2012); IDT Corp., 12 N.Y.3d at 142, 879 N.Y.S.2d 355, 907 N.E.2d at 274. To state a claim for unjust enrichment, a complaint must allege three elements: (1) the defendant was enriched; (2) at the plaintiffs expense; and (3) equity and" }, { "docid": "21288960", "title": "", "text": "order to resolve the factual dispute. Rocovich v. United States, 933 F.2d 991, 994 (Fed.Cir.1991). The court should “look beyond the pleadings and decide for itself those facts, even if in dispute, which are necessary for a determination of [the] jurisdictional merits.” Raymark 15 Cl.Ct. at 335, citing La Mear v. United States, 9 Cl.Ct. 562, 568 n. 6 (1986), aff'd, 809 F.2d 789 (Fed.Cir.1986). I. Count II: Claim for Quantum Meruit Count II of plaintiff’s complaint is essentially count I reasserted on a basis of quantum meruit. The Court of Claims defined quantum meruit to mean “as much as he merited.” United States v. Amdahl, 786 F.2d 387, 393 n. 6 (Fed.Cir. 1986) (quoting Urban Data Systems, Inc. v. United States, 699 F.2d 1147, 1154 (Fed. Cir.1983)). Typically, an action based upon quantum meruit “is an action on a contract implied in law, as distinguished from a suit on a contract implied, in fact.” Fincke v. United States, 675 F.2d 289, 230 Ct.Cl. 233, 246 (1982); Wells Fargo Bank, N.A. v. United States, 26 Cl.Ct. 805, 817 (1992). The Supreme Court has held that this court lacks jurisdiction to hear suits based on implied-in-law contracts. United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct. 2961, 2968, 77 L.Ed.2d 580 (1983); see also, Sharkey v. United States, 17 Cl.Ct. 643, 652 (1989) (citing Aetna Casualty & Sur. Co. v. United States, 655 F.2d 1047, 228 Ct.Cl. 146, 164 (1981)). Nonetheless, the Court of Appeals for the Federal Circuit has held that— Where a benefit has been conferred by the contractor on the government in the form of goods or services, which it accepted, a contractor may recover at least on a quantum valebant or quantum meruit basis____ The contractor is not compensated under the contract, but rather under an implied-in-fact contract. Amdahl Corp., 786 F.2d at 393. For the purposes of its motion, defendant does not dispute that Farmers Grain stored and loaded out grain owned or held by CCC between October 6, 1986 and February 19, 1987. Defendant also admits that CCC has not paid Farmers Grain for" }, { "docid": "13311329", "title": "", "text": "463 U.S. [206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)]; Merritt [v. United States,] 267 U.S. [338, 341, 45 S.Ct. 278, 69 L.Ed. 643 (1925) ]. 29 Fed.Cl. at 472; see also AT & T v. United States, 124 F.3d 1471, 1479 (Fed.Cir. 1997) (noting that Court of Federal Claims generally lacks the power to grant remedies based in equity), rev’d en banc on other grounds, 177 F.3d 1368 (Fed.Cir.1999); City of El Centro v. United States, 922 F.2d 816, 820-24 (Fed.Cir.1990) (construing Court of Federal Claims jurisdiction over implied-in-fact contracts in contrast to implied-in-law contracts), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991); Wainwright Realty Co. v. United States, 28 Fed. Cl. 425, 426 (1993) (noting that Court of Federal Claims lacks jurisdiction over claims of unjust enrichment). The Federal Circuit implicitly ratified the holding in Mega Con struction Co. in its decision in Trauma Service Group v. United States, 104 F.3d 1321 (Fed.Cir.1997) The Federal Circuit held: “[I]mplied-in-law contract scenarios are beyond the purview of the Tucker Act” and therefore not remediable in the Court of Federal Claims. Id. at 1327; see also Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (noting that Court has “repeatedly held that [Court of Federal Claims] jurisdiction [does not extend] to claims on contracts implied in law”). An implied-in-fact contract fact also provides no ground upon which plaintiff can stake its claim for recovery. An implied-in-fact contract arises when all of the elements of an express contract are present, except a written document. See Atlas Corp. v. United States, 895 F.2d 745, 754 (Fed.Cir.1990). “The existence of an express contract precludes the existence of an implied contract dealing with the same subject----” Id. (citing ITT Fed. Support Servs. v. United States, 209 Ct.Cl. 157, 168 n. 12, 531 F.2d 522, 528 n. 12 (1976)). The parties to the present litigation entered an express contract on the exact subject that is the topic of this case. AT & T held that even if the contract were illegal, it would not" }, { "docid": "17801373", "title": "", "text": "faith and fair dealing that was contained in the Assistance Agreement. When the Guarini legislation was enacted into law in August 1993, the United States breached this implied covenant and became liable for contract damages. II. Other Counts Plaintiffs’ remaining counts can be dismissed. Plaintiffs’ takings claims, Counts II and VIII, are “conceptually foreclosed,” Plaintiffs in Winstar-Related Cases v. United States, 37 Fed.Cl. 174, 187 n. 9 (1997), aff'd sub nom., Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874 (Fed.Cir.1998), by our finding of contract breach. Plaintiffs’ due process claim, Count III, is outside the subject matter jurisdiction of this court. See N.Y. Power Auth. v. United States, 42 Fed. Cl. 795, 801 (1999). Plaintiffs’ unjust enrichment claim, Count IV, to the extent it is independent of plaintiffs’ breach of contract claim, is also outside the subject matter jurisdiction of this court, see Aetna Cas. & Sur. Co. v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047(1981); Frank & Breslow, LLP v. United States, 43 Fed.Cl. 65, 68 (1999); Dolmatch Group, Ltd. v. United States, 40 Fed. Cl. 431, 435 (1998), as is plaintiffs’ restitution claim, Count V, see W.P. Bill Atkinson Enters., Inc. v. United States, 228 Ct.Cl. 886, 888 (1981). We have already rejected the basis for plaintiffs’ reformation claim, Count VI. See Order of Mar. 28, 2001 at 2. Plain tiffs’ claim of breach of an implied-in-fact contract, Count VII, is foreclosed by our finding of breach of an express contract. Plaintiffs’ frustration of purpose claim, Count IX, and failure of condition claim, Count X, fail to state independent causes of action. Accordingly, Counts II through X are dismissed. III. Defendant’s Motion to Dismiss Plaintiffs’ Request for PreJudgment Interest In their prayer for relief, plaintiffs request pre-judgment interest. See Pis.’ Compl. at 41. Defendant has moved to dismiss this request, arguing that the United States has not explicitly waived its immunity from the granting of interest on a judgment rendered in this case. Responding to this argument, plaintiffs contend that the court will be in a better position to address defendant’s argument during" }, { "docid": "16122510", "title": "", "text": "an implied-in-law contract claim outside of this court’s jurisdiction. See Hercules, Inc. v. United States, 516 U.S. at 423, 116 S.Ct. 981 (The United States Supreme Court has “repeatedly held that this jurisdiction [under the Tucker Act] extends only to contracts either express or implied in fact, and not to claims on contracts implied in law.”); Lumbermens Mut. Cas. Co. v. United States, 654 F.3d at 1315 (When plaintiff “sought reimbursement from the government under the theory that, by fully performing its bond obligation, Lumbermens conferred more benefit on the government than was legally required and the government was unjustly enriched,” the court concluded that this was an implied-in-law theory of recovery, because plaintiff wanted recovery under equity principles “in order to prevent an injustice.”); Barrett Refining Corp. v. United States, 242 F.3d 1055, 1059 (Fed Cir.) (stating that the Tucker Act “‘does not reach claims based on contracts implied in law, as opposed to those implied in fact’ ” (quoting United States v. Mitchell, 463 U.S. at 218, 103 S.Ct. 2961)), reh’g denied (Fed.Cir.2001); Lawndale Restoration Ltd. P’ship ex rel. Boulevard Realty Servs. Corp. v. United States, 95 Fed.Cl. 498, 506 (2010), appeal dismissed, 459 Fed.Appx. 913 (2011); see also Cent. Freight Lines, Inc. v. United States, 87 Fed.Cl. at 112 n.8 (Agreeing with the government’s view that “a claim of unjust enrichment is equitable in nature and is not based on a contractual relationship,” and “ ‘is therefore based upon a contract implied in law, over which this court has not been given jurisdiction.’” (quoting Enron Fed. Solutions, Inc. v. United States, 80 Fed.Cl. at 409)). The United States Court of Appeals for the Federal Circuit has indicated: A recovery in quantum meruit[ or quantum valebant,] is based on an implied-in-law contract. That is, a contract in which there is no actual agreement between the parties, but the law imposes a duty in order to prevent injustice. The Court of Federal Claims, however, lacks jurisdiction over contracts implied in law. 28 U.S.C. § 1491(a)(1) (2000). Int'l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.Cir.2007); see" }, { "docid": "13311328", "title": "", "text": "case, must be distinguished based on the grounds of recovery that are currently available in the Court of Federal Claims. In Mega Construction Co. v. United States, 29 Fed.Cl. 396 (1993), the court discussed the differences between the authority of the Federal Circuit and that of the Court of Federal Claims to issue equitable remedies. The court in Mega Construction Co. held: Because the Court of Appeals for the Federal Circuit is a court created under Article III of the Constitution of the United States, its exercise of equitable powers, such as in [United States v.] Amdahl[, 786 F.2d 387 (Fed.Cir.1986) ], is within its jurisdictional mandate. However, [the Court of Federal Claims] is an Article I court with specific jurisdiction granted by the Congress that must be strictly construed. See United States v. John C. Grimberg Co., 702 F.2d 1362, 1372-74 (Fed.Cir.1983). This court is statutorily devoid of equitable jurisdiction in this area of the law and, thus may not provide redress for contracts implied-in-law. See 28 U.S.C. § 1491(a)(1); [United States v.] Mitchell, 463 U.S. [206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)]; Merritt [v. United States,] 267 U.S. [338, 341, 45 S.Ct. 278, 69 L.Ed. 643 (1925) ]. 29 Fed.Cl. at 472; see also AT & T v. United States, 124 F.3d 1471, 1479 (Fed.Cir. 1997) (noting that Court of Federal Claims generally lacks the power to grant remedies based in equity), rev’d en banc on other grounds, 177 F.3d 1368 (Fed.Cir.1999); City of El Centro v. United States, 922 F.2d 816, 820-24 (Fed.Cir.1990) (construing Court of Federal Claims jurisdiction over implied-in-fact contracts in contrast to implied-in-law contracts), cert. denied, 501 U.S. 1230, 111 S.Ct. 2851, 115 L.Ed.2d 1019 (1991); Wainwright Realty Co. v. United States, 28 Fed. Cl. 425, 426 (1993) (noting that Court of Federal Claims lacks jurisdiction over claims of unjust enrichment). The Federal Circuit implicitly ratified the holding in Mega Con struction Co. in its decision in Trauma Service Group v. United States, 104 F.3d 1321 (Fed.Cir.1997) The Federal Circuit held: “[I]mplied-in-law contract scenarios are beyond the purview of the Tucker Act”" }, { "docid": "6504462", "title": "", "text": "disputes any liability for these other contracts, asserting they are unrelated to its contract with the government. On June 26, 1987, Placeway filed a complaint in the Claims Court containing six counts: Count I seeks a declaratory judgment that the government cannot withhold the contract price balance due Placeway. Count II seeks a money judgment in the amount of the contract price balance, $297,-226.12, plus interest. Count III seeks an equitable adjustment of $50,000.00, plus interest, alleging underpayment of wages due to defective specifications. Count IV seeks an equitable adjustment of $27,-366.00, for increased performance costs because of alleged differing site conditions. Count V seeks twenty-two adjustments, totaling $140,251.95, for additional costs incurred because of alleged change orders, constructive changes, and defective specifi cations. Count VI seeks extended overhead costs, totaling $119,585.91, plus interest, for several delays allegedly caused by, or the responsibility of, the government. Placeway, 18 Cl.Ct. at 162; App. at 21-30. The government moved to dismiss for lack of certification, and the Claims Court dismissed all the counts for lack of jurisdiction. Placeway timely appealed; we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3) (1988). We review the question of jurisdiction de novo. See 41 U.S.C. § 609(b) (1988). OPINION I. Declaratory Judgment Claim The United States Claims Court correctly noted that its predecessor court, the United States Court of Claims, did not have jurisdiction over claims seeking relief other than money damages. See United States v. King, 395 U.S. 1, 4-5, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969). However, when Congress created the Claims Court by enacting the Federal Courts Improvement Act of 1982, Congress conferred upon the Claims Court the power to grant equitable relief in limited circumstances. 28 U.S.C. § 1491(a)(3) (1988); see United States v. John C. Grimberg Co., 702 F.2d 1362, 1365-74 (Fed.Cir.1983) (in banc). The Claims Court’s equitable powers, including authority “to grant declaratory judgments,” are limited to cases in which a “contract claim” is filed “before the contract is awarded.” 28 U.S.C. § 1491(a)(3) (1988) (emphasis added). In the instant case, Placeway filed its Complaint long after the contract" }, { "docid": "11970565", "title": "", "text": "HVAC system had been operating seven days a week from 6:00 a.m. to 6:00 p.m., and instead stated that the HVAC system had been on a “24-hour, 7-day operation.” In an August 22, 1986, letter to the GSA, plaintiff made a final request for payment and raised the amount due to $192,750. This increase in the amount due resulted from plaintiff estimating overtime usage at two hours per day five days a week, instead of one six-hour period every other Saturday. On May 14, 1990, plaintiff submitted a certified claim for $192,750 to the GSA contracting officer. The contracting officer, however, did not respond to plaintiff’s claim, and on June 17, 1991, plaintiff filed the instant complaint. In its complaint, plaintiff seeks to recover $192,750 on the ground that “[b]y having received and utilized heat and airconditioning beyond normal working hours during the period June 22, 1981, through May 25, 1986, without paying for such services, the United States has been unjustly enriched.” III. In its motion to dismiss, defendant contends that the instant action must be dismissed pursuant to Rule 12(b)(1) because a claim based on unjust enrichment is equitable in nature and falls outside of this court’s jurisdiction. Defendant is correct in so describing the limits of this court’s jurisdiction. As this court’s predecessor, the Court of Claims explained in Aetna Casualty & Surety v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047, 1059-60 (1981), that “[a] claim based on unjust enrichment ... proceed[s] from a perception that a party ought to be bound rather than ... agreed to be bound. [An] unjust enrichment ... theory of recovery is therefore based upon a contract implied in law, over which this court has not been given jurisdiction” (emphasis in original) (citations omitted). Plaintiff does not dispute that this court lacks jurisdiction over claims based on unjust enrichment. Instead, plaintiff, in effect, contends that the court should interpret the instant claim as not being founded on unjust enrichment or, in the alternative, permit plaintiff to amend its complaint so as to present a new theory of recovery based upon" }, { "docid": "21734552", "title": "", "text": "claim. It is undisputed that the Court of Federal Claims has no jurisdiction over implied-in-law contracts. Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996); El Centro, 922 F.2d at 823 (“[T]he Government has long been held immune for such claims for relief.”) (citation omitted). However, the Court does have jurisdiction over implied-in-fact contracts under the Tucker Act. See Hercules, 516 U.S. at 423, 116 S.Ct. 981; Gould, Inc. v. United States, 67 F.3d 925, 928 (Fed. Cir.1995). An implied-in-fact contract is “founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Baltimore & Ohio R.R. Co., v. United States, 261 U.S. 592, 597, 58 Ct.Cl. 709, 43 S.Ct. 425, 67 L.Ed. 816 (1923) (citation omitted). However, for Plaintiff to survive Defendant’s motion for summary judgment with regard to count II, a contract must have existed at one time between Plaintiff and the Government. Since Plaintiff has been unable to show a genuine issue of material fact to as to whether an implied-in-fact contract was present. summary judgment is appropriate on count II of Plaintiffs complaint. See Perri, 53 Fed.Cl. at 408-09; Mega Constr. Co. v. United States, 29 Fed.Cl. 396, 472 (1993). Plaintiff contends that Defendant “received the benefit of numerous seizures worth millions of dollars ... with its full appreciation and knowledge.” Compl. 129, and that Defendant “accepted and retained this benefit.” Compl.¶ 30. Therefore, he cites to a variety of cases to support his proposition that he is entitled to compensation under the theory of unjust enrichment. However, all of the cases Plaintiff mentions are distinguishable, in that a contract had once existed in each case, but was later deemed invalid. See United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed.Cir. 1986), in which the Federal Circuit states, “[t]he contractor is not compensated under the contract, but rather under an implied-in-fact contract.” This is an important distinction for two reasons: (1) the use of" }, { "docid": "344797", "title": "", "text": "violate .... good conscience to allow the government .... to benefit from the $5,600,000.00 forfeiture .... and not .... pay the plaintiff .... in an amount that is fairly merited under all of the circumstances.” Pl. Opp. to Def. MSJ at 10-11. Quantum meruit is an equitable remedy for unjust enrichment which employs the fiction of a contract implied-in-law. As explained by this court in Mega Construction Company, Inc. v. United States, 29 Fed.Cl. 396, 470 (1993), “[a] contract implied-in-law is one in which no actual agreement between the parties occurred but where equity imposes a duty in order to prevent injustice.” (Citations omitted.) It is well established, however, that the Court of Federal Claims does not have jurisdiction over implied-in-law contracts. See United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Wainwright Realty Co. v. United States, 28 Fed.Cl. 425, 426 (1993); AT & T v. United States, 124 F.3d 1471, 1479 (Fed.Cir.1997). Under the Tucker Act this court’s contract-based jurisdiction “extends only to contracts either express or implied in fact, and not to claims on contracts implied in law.” Trauma Service Group v. United States, 104, F.3d 1321, 1324 (Fed.Cir.1997) (quoting Hercules, Inc. v. United States, 516 U.S. 417, 423, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996)). Despite this legal precedent plaintiff contends that this court and its predecessor, the Court of Claims, have recognized the right to quantum meruit awards based on an “implied-in-fact” contract theory. See Farmers Grain Co. v. United States, 29 Fed.Cl. 684, 687 (1993); United International Investigative Services v. United States, 26 Cl.Ct. 892, 899 (1992); Prestex, Inc. v. United States, 162 Ct.Cl. 620, 320 F.2d 367, 373 (1963). Plaintiff cites language from United States v. Amdahl, 786 F.2d 387, 393 (Fed.Cir.1986), in which the Federal Circuit explained that: [i]t would violate good conscience to impose upon the contractor all economic loss from having entered an illegal contract. Where a benefit has been conferred by the contractor on the government in the form of goods or services, which it accepted, a contractor may recover at least on" }, { "docid": "7183413", "title": "", "text": "United States, 34 Fed.Cl. 165, 168 (1995) (quoting Nicholson v. United States, 29 Fed.Cl. 180, 185 (1993)). See also United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Rig Masters, Inc. v. United States, 42 Fed.Cl. 369, 372 (1998) (stating “[i]t is well established that this court does not have jurisdiction over claims for specific performance”); Hoch v. United States, 31 Fed.Cl. 111, 114 (1994) (stating “the Court of Federal Claims was created under Article I of the Constitution and has no equitable powers”); Blackwell v. United States, 23 Cl.Ct. 746, 750 (1991) (stating this court does not have jurisdiction over claims for specific performance); Massachusetts Bay Transp. Auth. v. United States, 21 Cl.Ct. 252, 262, 1990 WL 107736 (1990) (stating this court generally lacks authority to grant requests for declaratory judgments); Edwards v. United States, 19 Cl.Ct. 663, 668 n. 5 (1990) (stating this court has no jurisdiction over equitable matters). Accordingly, this court does not have general equitable jurisdiction to entertain plaintiffs claims insofar as they may seek such relief. There are certain limited situations, however, in which this court is authorized to grant equitable relief. See 28 U.S.C. §§ 1491(a)(l)-(a)(3). First, this court may grant equitable relief in bid protest cases. See 28 U.S.C. § 1491(a)(3); Landers v. United States, 39 Fed.Cl. 297, 301 (1997). This case is obviously not a bid protest, and plaintiff has not presented it as such. This court may also grant equitable relief when such relief is merely incidental to plaintiffs claim for money damages. 28 U.S.C. § 1491(a)(2); Landers, 39 Fed.Cl. at 301. In this case, however, any equitable relief sought cannot be incidental to plaintiffs claim for money damages because, as discussed infra, plaintiff has not stated a claim for money damages. Moreover, pursuant to the Federal Courts Administration Act this court has jurisdiction over certain non-monetary disputes with a contractor arising under Section 10(a)(1) of the Contract Disputes Act (CDA), 41 U.S.C. §§ 601-13 (1994), including “a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost" }, { "docid": "16122511", "title": "", "text": "Lawndale Restoration Ltd. P’ship ex rel. Boulevard Realty Servs. Corp. v. United States, 95 Fed.Cl. 498, 506 (2010), appeal dismissed, 459 Fed.Appx. 913 (2011); see also Cent. Freight Lines, Inc. v. United States, 87 Fed.Cl. at 112 n.8 (Agreeing with the government’s view that “a claim of unjust enrichment is equitable in nature and is not based on a contractual relationship,” and “ ‘is therefore based upon a contract implied in law, over which this court has not been given jurisdiction.’” (quoting Enron Fed. Solutions, Inc. v. United States, 80 Fed.Cl. at 409)). The United States Court of Appeals for the Federal Circuit has indicated: A recovery in quantum meruit[ or quantum valebant,] is based on an implied-in-law contract. That is, a contract in which there is no actual agreement between the parties, but the law imposes a duty in order to prevent injustice. The Court of Federal Claims, however, lacks jurisdiction over contracts implied in law. 28 U.S.C. § 1491(a)(1) (2000). Int'l Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed.Cir.2007); see also Perri v. United States, 340 F.3d 1337, 1343 (Fed.Cir.2003) (In an quantum meruit claim implied in law, “[t]he theory is that if one party to a transaction provides goods or services to the other party that the parties intended would be paid for, but the recipient refuses to pay for them, the law will imply a contract for the recipient to pay the fair value of what it has received.” (citing United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed.Cir.1986))); Am. Tel. & Tel. Co. v. United States, 124 F.3d 1471, 1479 (Fed.Cir.1997) (“Quantum meruit is the name given to an implied-in-law remedy for unjust enrichment. As a general rule, it falls outside the scope of relief available through the Court of Federal Claims.” (citing Trauma Serv. Group v. United States, 104 F.3d at 1324-25)), granting reh’g en banc and vacating on other grounds, 136 F.3d 793 (Fed.Cir.1998), reh’g en banc, 177 F.3d 1368 (Fed.Cir.1999). In limited circumstances, a contractor can seek recovery on a contract claim on a quantum meruit or quantum" } ]

[ { "docid": "14114540", "title": "", "text": "749. Accordingly, a person or entity “acts ... in the interest of an employer in relation to an employee or prospective employee,” and, therefore, is subject to suit under 29 U.S.C. § 2005(c)(1) if, as a matter of economic reality, that person or entity exerts some degree of control over the employer’s compliance with EPPA. This is in accord with the Secretary of Labor’s carefully phrased regulation which “ordinarily ” excludes examiners “retained for the sole purpose of administering polygraphs.” 29 C.F.R. § 801.2(c) (emphasis added). Indeed, it is to be expected that an entity in the business of administering polygraph examinations would have a better understanding of EPPA’s restrictions than an employer who rarely has occasion to conduct such examinations. For example, if an examiner decides which employees may be polygraphed and under what circumstances polygraph examinations are permissible, that examiner is “acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” On the other hand, if the examiner is hired for the sole purpose of administering examinations at the direction of the employer, then, as a matter of economic reality, that examiner does not exert control over the employer’s compliance with EPPA and, therefore, is not subject to suit under 29 U.S.C. § 2005(c)(1). In the case at bar, it is unclear whether defendant Gwynne had any role in the investigation beyond administering the examinations. Plaintiffs contend that it did, arguing that Gwynne “provided expertise”, which may have included informing Tourneau of EPPA’s restrictions. (PI. Mem. at 7) Similarly, in its cross-claim defendant Tourneau alleges that Gwynne represented it would inform Tourneau which employees could be examined lawfully and would conduct the examinations in compliance with EPPA. (Amended Ans. W 34, 36) Because at this stage of the proceedings, all inferences must be drawn in favor of plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), I conclude that defendant Gwynne exerted some control over Tourneau’s compliance with EPPA, and therefore is subject to suit under 29 U.S.C. § 2005(c)(1). For the reasons" } ]

[ { "docid": "10613525", "title": "", "text": "regarding compliance with EPPA’s requirements, or the employer relied on the examiner to ensure compliance; or (4) decided whether the examined employee would be subjected to disciplinary action, or merely reported the results of the polygraph examination to the employer. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 727 (5th Cir.2002). Like the Fifth Circuit, we “do not, and need not, further define the scope of the ‘economic reality’ test” to consider whether LPS qualifies as an employer. Id. It is undisputed that LPS had no role in the decision to terminate Fernandez and Abreu’s employment, so appellants' arguments focus on the other three factors. First, appellants argue that, by directing the Co-op how to get the tests taken, LPS decided that polygraphs should be taken. Appellants’ suggestion is rather attenuated. The record shows that it was the Co-op, then Armijo, who contacted LPS about taking polygraphs. This indicates that it was the Co-op and/or Armijo who decided polygraphs should be taken. This factor does not support imposing liability on LPS. Appellants also suggest that LPS advised the Co-op how employees should be selected for the polygraphs. Again, this inference is too attenuated to support liability. The record indicates that Lucero stated that he could not test Co-op employees as Leger originally requested, and that he would perform tests if requested by law enforcement and the individuals to be tested were identified by law enforcement. There is no suggestion that Lucero suggested or identified the specific employees to be tested, directly or indirectly. This situation is distinguishable from the examiner having a role in selecting the particular employees to be tested. Cf. Rubin, 797 F.Supp. at 253 (noting that the examiner allegedly “represented it would inform [the employer] which employees could be examined lawfully”). Thus, this factor also does not support imposing liability on LPS. Finally, appellants assert that Lucero advised the Co-op about compliance with the EPPA and the circumstances under which the Co-op employees should be polygraphed. In support, they primarily rely on Lucero’s comments to Leger that the tests would have to be taken in conjunction with" }, { "docid": "5857674", "title": "", "text": "theft.” Id. at § 2006. The EPPA provides for private enforcement by creating a cause of action for employees against “an employer who violates [the EPPA] ... for such legal or equitable relief as may be appropriate.” Id. at § 2005(c)(1) (emphasis added). The EPPA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Id. at § 2001(2). Pursuant to the Secretary of Labor’s duty to “issue such rules and regulations as may be necessary or appropriate to carry out [the EPPA],” id. at § 2004(a), the Secretary promulgated the following regulation: The term employer means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. A polygraph examiner either employed for or whose services are otherwise retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with respect to the examinees. 29 C.F.R. § 801.2(c) (2001). Although we have found no circuit court of appeals case law considering whether a polygraph examiner can qualify as an employer under the EPPA, the existing district court authority is consistent with the Western District of Texas’s approach in Calbillo. All four district courts that previously addressed the issue concluded that a polygraph examiner can sometimes constitute an employer under the EPPA, and all four applied the “economic reality” test in reaching their conclusions. See James v. Professionals’ Detective Agency, Inc., 876 F.Supp. 1013, 1016 (N.D.Ill.1995); Kluge v. O’Reilly Auto., Inc., No. 94-2159-GTV, 1994 WL 409575, at *9-10 (D.Kan. Aug.3, 1994); Fallin v. Mindis Metals, Inc., 865 F.Supp. 834, 840 (N.D.Ga.1994); Rubin v. Tourneau, Inc., 797 F.Supp. 247, 249-53 (S.D.N.Y.1992). The Southern District of New York was the first court to examine the meaning of “employer” in the context of a suit against a polygraph examiner under the EPPA. In Rubin, the court analyzed the term “employer” under the EPPA and compared it to the definition of “employer” in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et" }, { "docid": "5857671", "title": "", "text": "(5th Cir.2000). Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists if the record, taken as a whole, could lead a rational trier of fact to find for the non-moving party. Geoscan, 226 F.3d at 390. We review the facts drawing all reasonable inferences in the light most favorable to the non-movant. Id. The non-movant cannot avoid summary judgment, however, by merely making “conclusory allegations” or “unsubstantiated assertions.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). II. The Employee Polygraph Protection Act The district court entered summary judgment in favor of Allied on Calbillo’s EPPA claims after concluding that Allied was not an employer subject to liability under the EPPA. Calbillo v. Cavender Oldsmobile, Inc., No. Civ.A.SA-99-CA-85-FB, 2000 WL 33348243, at *12 (Sept. 29, 2000 W.D.Tex.). The court observed that in order for Calbillo to recover under the EPPA, Allied must qualify as an “employer” as defined by the EPPA. Id. at *7. The court further adopted the view that the determination of whether a polygraph examiner is an employer under the EPPA requires consideration of whether the examiner exerted control, as a matter of economic reality, over the employer’s compliance with the EPPA. Id. at *12. After reviewing Calbillo’s allegations and the evidence put forth in support thereof, the court noted that most of the allegations concerned actions taken by Trease in his role as a private investigator, not as a polygraph examiner. Id. at *9-10. Placing much emphasis on Hollas’s “uncontro-verted” affidavit concerning Trease’s role, the court concluded that, other than Cal-billo’s speculation to the contrary, there was no evidence that Trease, acting in his role as investigator or polygraph examiner, exerted control over Cavender’s compliance with the EPPA." }, { "docid": "5857677", "title": "", "text": "employer and subject to suit under the EPPA if the examiner’s services were not retained solely for the purposes of administering the examination. While the EPPA’s definition of employer is broad and what constitutes “acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee” is ambiguous, we decline to adopt a per se rule that a polygraph examiner is subject to suit under the EPPA if he or she has any role in a theft investigation beyond administering the examination. The Secretary’s regulation does not clarify when a polygraph examiner is deemed an employer under the EPPA, it merely attempts to “exclude [from the EPPA’s definition of employer] a polygraph examiner employed for the sole purpose of conducting a polygraph test.” 56 Fed.Reg. 9046-01 (Mar. 4,1991). We conclude that the “economic reality” test is the better approach; thus, whether a polygraph examiner is an employer under the EPPA requires consideration of whether the examiner went beyond the role of an independent entity, and exerted control, as a matter of economic reality, over the employer’s compliance with the EPPA. This conclusion is consistent with the EPPA’s definition and the Secretary’s carefully phrased regulation which “ordinarily” protects a polygraph examiner from liability if he or she is hired solely for the purpose of conducting a polygraph examination. 29 C.F.R. § 801.2(c) (emphasis added). If the examiner is hired for the sole purpose of administering an examination, then, as a matter of economic reality, the examiner is generally not “acting ... in the interest of an employer in relation to an employee or prospective employee,” and, therefore, is not subject to suit under 29 U.S.C. § 2005(c)(1). When examining the degree of control necessary to treat a polygraph examiner as an employer for purposes of the EPPA, district courts have considered whether the examiner (1) decided that a polygraph examination should be administered; (2) decided which employee would be examined; (8) provided expertise or advice to the employer regarding compliance with the EPPA’s requirements, or the employer relied on the examiner to ensure compliance; or" }, { "docid": "10613524", "title": "", "text": "v. Tourneau, Inc., 797 F.Supp. 247, 253 (S.D.N.Y.1992). It stems from cases interpreting the Fair Labor Standards Act, which defines “employer” the same way as the EPPA. See id. at 252 (“Just as the phrase ‘acting directly or indirectly in the interest of an employer in relation to an employee' is applied to effect FLSA’s purpose, so too, ... must it be applied to effect EPPA’s purpose — -restricting the use of lie detectors in the work place.”). Given Congress’s use of the same language in defining the term “employer” in the two statutes, and because we agree with the reasoning of other courts that have adopted this test, we approve using the economic reality test in evaluating whether a polygraph examiner is an “employer” for purposes of EPPA. The Fifth Circuit summarized four factors courts have considered in applying the economic reality test: [District courts have considered whether the examiner (1) decided that a polygraph examination should be administered; (2) decided which employee would be examined; (3) provided expertise or advice to the employer regarding compliance with EPPA’s requirements, or the employer relied on the examiner to ensure compliance; or (4) decided whether the examined employee would be subjected to disciplinary action, or merely reported the results of the polygraph examination to the employer. Calbillo v. Cavender Oldsmobile, Inc., 288 F.3d 721, 727 (5th Cir.2002). Like the Fifth Circuit, we “do not, and need not, further define the scope of the ‘economic reality’ test” to consider whether LPS qualifies as an employer. Id. It is undisputed that LPS had no role in the decision to terminate Fernandez and Abreu’s employment, so appellants' arguments focus on the other three factors. First, appellants argue that, by directing the Co-op how to get the tests taken, LPS decided that polygraphs should be taken. Appellants’ suggestion is rather attenuated. The record shows that it was the Co-op, then Armijo, who contacted LPS about taking polygraphs. This indicates that it was the Co-op and/or Armijo who decided polygraphs should be taken. This factor does not support imposing liability on LPS. Appellants also suggest that" }, { "docid": "5857675", "title": "", "text": "of appeals case law considering whether a polygraph examiner can qualify as an employer under the EPPA, the existing district court authority is consistent with the Western District of Texas’s approach in Calbillo. All four district courts that previously addressed the issue concluded that a polygraph examiner can sometimes constitute an employer under the EPPA, and all four applied the “economic reality” test in reaching their conclusions. See James v. Professionals’ Detective Agency, Inc., 876 F.Supp. 1013, 1016 (N.D.Ill.1995); Kluge v. O’Reilly Auto., Inc., No. 94-2159-GTV, 1994 WL 409575, at *9-10 (D.Kan. Aug.3, 1994); Fallin v. Mindis Metals, Inc., 865 F.Supp. 834, 840 (N.D.Ga.1994); Rubin v. Tourneau, Inc., 797 F.Supp. 247, 249-53 (S.D.N.Y.1992). The Southern District of New York was the first court to examine the meaning of “employer” in the context of a suit against a polygraph examiner under the EPPA. In Rubin, the court analyzed the term “employer” under the EPPA and compared it to the definition of “employer” in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. 797 F.Supp. at 251. After determining that the term “employer” under the EPPA should be construed similarly to judicial interpretations of the word for purposes of the FLSA, the court concluded that since the meaning of “employer” under the FLSA includes those who, as a matter of economic reality, exercise some degree of control over an employee’s terms and conditions of employment, an “economic reality” test was appropriate for the EPPA as well. Id. at 251-52. Thus, the court held that a polygraph examiner was an employer under the EPPA only where, “as a matter of economic reality, [the polygraph examiner] exerts some degree of control over the employer’s compliance with the EPPA.” Id. at 253. The district courts in Fallin, Kluge, James, and Calbil-lo followed Rubin in applying the “economic reality” test. Calbillo urges us to apply the plain meaning of the statutory and regulatory definitions of “employer,” as opposed to the “economic reality” test. He contends that a polygraph examiner hired by an employer to administer an examination may be considered an" }, { "docid": "14114541", "title": "", "text": "administering examinations at the direction of the employer, then, as a matter of economic reality, that examiner does not exert control over the employer’s compliance with EPPA and, therefore, is not subject to suit under 29 U.S.C. § 2005(c)(1). In the case at bar, it is unclear whether defendant Gwynne had any role in the investigation beyond administering the examinations. Plaintiffs contend that it did, arguing that Gwynne “provided expertise”, which may have included informing Tourneau of EPPA’s restrictions. (PI. Mem. at 7) Similarly, in its cross-claim defendant Tourneau alleges that Gwynne represented it would inform Tourneau which employees could be examined lawfully and would conduct the examinations in compliance with EPPA. (Amended Ans. W 34, 36) Because at this stage of the proceedings, all inferences must be drawn in favor of plaintiffs, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), I conclude that defendant Gwynne exerted some control over Tourneau’s compliance with EPPA, and therefore is subject to suit under 29 U.S.C. § 2005(c)(1). For the reasons stated above, defendant Gwynne’s motion is denied. SO ORDERED. . It is likely that defendants will rely on the \"ongoing investigation\" exemption. It should be noted that the exemption is available only if, inter alia: (i) the examinee had access to the property in question; (ii) the employer has a reasonable suspicion that the employee was involved in the incident being investigated; (iii) the employer executes a statement, provided to the examinee prior to the test that informs the examinee of the incident being investigated and the basis for testing the examinee. See 29 U.S.C. § 2006(d). . This condition applies to the exemptions for security services, firms authorized to manufacture, distribute or dispense controlled substances, and employers conducting ongoing investigations into illegal economic loss. 29 U.S.C. § 2007(c). . Before enactment of EPPA in 1988, 18 states and the District of Columbia had laws regulating or prohibiting the use of polygraphs and 25 states had licensing requirements for polygraph examiners. Mark A. Rothstein, Andria S. Knapp & Lance M. Liebman, Employment Law 143 (2d" }, { "docid": "14114531", "title": "", "text": "in so arguing, plaintiffs fail to take into account the existence of state remedies. It is possible that the purpose of such a provision was not to ensure recovery in event suit was brought under EPPA, but rather to ensure that polygraphs are conducted by reputable examiners and to protect employees who bring suit against examiners under state law. The agency charged with administering the statute has concluded that examiners hired only to conduct polygraph tests ordinarily are not employers under EPPA. Pursuant to its duty to issue “rules and regulations as may be necessary or appropriate to carry out [the Act]”, 29 U.S.C. § 2004(a), the Department of Labor has promulgated the following regulation: The term employer means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. A polygraph examiner either employed for or whose services are otherwise retained for the sole purpose of administering polygraphs ordinarily would not be deemed an employer with respect to the examinees. 29 C.F.R. § 801.2(c) (emphasis in original). According to the Department, the purpose of the regulation is to “exclude [from the definition of employer] a polygraph examiner employed for the sole purpose of conducting a polygraph test.” 56 Fed.Reg. 9048 (1991). When an agency such as the Department of Labor is charged with administration and enforcement of a statute, review of that agency’s interpretation of the statute is governed by the standard set forth in 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). See EEOC v. Arabian American Oil Co., — U.S. —, 111 S.Ct. 1227, 1236, 113 L.Ed.2d 274 (1991) (Sealia, J., concurring). Under Chevron, the court must first examine the statute to determine whether “Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. at 2781. If the court concludes that the statute’s language is ambiguous, as I have done here, “then the court must defer to any reasonable construction of the statute by the implementing agency, ‘unless the legislative" }, { "docid": "14114530", "title": "", "text": "and although this gives rise to an inference that an “examiner” is distinct and different from an “employer,” that is hardly conclusive. EPPA does not define examiner, and given the broad definition of employer, there is no reason why a person or entity could not be both an examiner and an employer. As previously noted, EPPA includes several exemptions which permit work place polygraph testing in certain limited situations. See 29 U.S.C. § 2006. One condition for exemption from EPPA is that the tests be conducted by an examiner who “maintains a minimum of a $50,000 bond or an equivalent amount of professional liability coverage.” 29 U.S.C. § 2007(c)(1)(B). Based on this provision plaintiffs argue that if examiners are excluded from the category of employers, employees would be unable to bring actions against examiners, and the bond provision would be rendered meaningless. See Moskal v. United States, 498 U.S. 108, 111 S.Ct. 461, 466, 112 L.Ed.2d 449 (1990) (“a court should ‘give effect, if possible, to every clause and word of a statute’ ”). However, in so arguing, plaintiffs fail to take into account the existence of state remedies. It is possible that the purpose of such a provision was not to ensure recovery in event suit was brought under EPPA, but rather to ensure that polygraphs are conducted by reputable examiners and to protect employees who bring suit against examiners under state law. The agency charged with administering the statute has concluded that examiners hired only to conduct polygraph tests ordinarily are not employers under EPPA. Pursuant to its duty to issue “rules and regulations as may be necessary or appropriate to carry out [the Act]”, 29 U.S.C. § 2004(a), the Department of Labor has promulgated the following regulation: The term employer means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. A polygraph examiner either employed for or whose services are otherwise retained for the sole purpose of administering polygraphs ordinarily would not be deemed an employer with respect to the examinees. 29 C.F.R. § 801.2(c) (emphasis" }, { "docid": "5857678", "title": "", "text": "matter of economic reality, over the employer’s compliance with the EPPA. This conclusion is consistent with the EPPA’s definition and the Secretary’s carefully phrased regulation which “ordinarily” protects a polygraph examiner from liability if he or she is hired solely for the purpose of conducting a polygraph examination. 29 C.F.R. § 801.2(c) (emphasis added). If the examiner is hired for the sole purpose of administering an examination, then, as a matter of economic reality, the examiner is generally not “acting ... in the interest of an employer in relation to an employee or prospective employee,” and, therefore, is not subject to suit under 29 U.S.C. § 2005(c)(1). When examining the degree of control necessary to treat a polygraph examiner as an employer for purposes of the EPPA, district courts have considered whether the examiner (1) decided that a polygraph examination should be administered; (2) decided which employee would be examined; (8) provided expertise or advice to the employer regarding compliance with the EPPA’s requirements, or the employer relied on the examiner to ensure compliance; or (4) decided whether the examined employee would be subjected to disciplinary action, or merely reported the results of the polygraph examination to the employer. See Calbillo, 2000 WL 33348243, at *12; Kluge, 1994 WL 409575, at *3; Fallin, 865 F.Supp. at 840; Rubin, 797 F.Supp. at 253. We do not, and need not, further define the scope of the “economic reality” test in determining whether Allied exercised enough control over Ca- vender’s compliance with the EPPA to warrant being considered an employer. Here, there is no evidence that Trease made the decision to polygraph or decided who to polygraph. Although there is evidence that Trease was involved in the decision to interview Cavender employees regarding the missing Froen, Trease made this recommendation in his role as a private investigator, not as a polygraph examiner. The evidence in the record is insufficient to support Calbillo’s contention that Trease was also involved in the decision to polygraph Calbillo. There is no evidence that Trease provided guidance to ensure that Cavender would comply with the provisions of the" }, { "docid": "5857672", "title": "", "text": "liability under the EPPA. Calbillo v. Cavender Oldsmobile, Inc., No. Civ.A.SA-99-CA-85-FB, 2000 WL 33348243, at *12 (Sept. 29, 2000 W.D.Tex.). The court observed that in order for Calbillo to recover under the EPPA, Allied must qualify as an “employer” as defined by the EPPA. Id. at *7. The court further adopted the view that the determination of whether a polygraph examiner is an employer under the EPPA requires consideration of whether the examiner exerted control, as a matter of economic reality, over the employer’s compliance with the EPPA. Id. at *12. After reviewing Calbillo’s allegations and the evidence put forth in support thereof, the court noted that most of the allegations concerned actions taken by Trease in his role as a private investigator, not as a polygraph examiner. Id. at *9-10. Placing much emphasis on Hollas’s “uncontro-verted” affidavit concerning Trease’s role, the court concluded that, other than Cal-billo’s speculation to the contrary, there was no evidence that Trease, acting in his role as investigator or polygraph examiner, exerted control over Cavender’s compliance with the EPPA. Id. at *11-12. The court found it compelling that “[t]he decision to polygraph, who to polygraph, and the decision to terminate” were all ultimately made by Cavender. Id. Calbillo argues that summary judgment on his EPPA claim was inappropriate because a genuine issue of material fact exists as to whether Allied qualified as an employer under the EPPA. Calbillo’s appeal thus presents an issue of first impression in this circuit: whether and under what circumstances a polygraph examiner is an “employer” within the meaning of the EPPA’s definition of that term. The EPPA makes it illegal for an employer to require or request that an employee take a polygraph examination. 29 U.S.C. § 2002(1). Employers are also prohibited from discharging any employee who fails or refuses to take a polygraph examination. Id. at § 2002(3). Congress created a limited exemption that permits an employer to request an employee to submit to a polygraph examination if it “is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as" }, { "docid": "14114525", "title": "", "text": "1991, 25 Tourneau employees including plaintiff Rubin, a buyer, and plaintiff Viteritti, a salesperson, received written requests to submit to polygraph examinations from Louis Rosen, Tourneau’s Director of Administration. (Compl.Exh. A) Shortly thereafter, plaintiffs took polygraph examinations administered by defendant Gwynne. On April 16, 1991, plaintiffs were fired by Tourneau for refusing to take a second polygraph examination. Following dismissal, plaintiff Rubin remained unemployed for approximately four months. As of the filing of the complaint on December 31, 1991, plaintiff Viteritti remained unemployed. Plaintiffs have alleged two claims against defendant Tourneau and one claim against both defendants for violations of EPPA. Plaintiffs’ Third Cause of Action, which is the subject of this motion, alleges that in the course of the polygraph examination “[pjlaintiffs were forced to answer personal and degrading questions and suffered great embarrassment, humiliation and mental distress for which defendant Gwynne and defendant Tourneau are liable in damages.” (Compl. 1134) Defendant Tourneau has cross-claimed against defendant Gwynne, alleging that Gwynne represented it would inform Tour neau as to which employees could lawfully be polygraphed and would conduct the examinations in compliance with EPPA. (Amended Ans. ¶1¶ 34, 36) Tourneau seeks indemnification for any judgment entered in this suit and any fines levied by the Department of Labor. II. Congress passed EPPA after concluding that employees and applicants often are denied employment opportunities or fired unjustly because of the misuse of polygraph examinations and the inaccuracies inherent in current methods of lie-detection. See S.Rep. No. 284, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 726; H.R.Conf.Rep. No. 659, 100th Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 749. EPPA prohibits an employer from requiring an employee or applicant to take a lie detector test. 29 U.S.C. § 2002(1). EPPA also prohibits any adverse action against an employee or applicant who fails or refuses to submit to a polygraph examination, or who files a complaint, testifies or exercises any right granted under EPPA. 29 U.S.C. §§ 2002(3)(A), 2002(4). Exemptions are provided for: (1) federal, state and local government employers; (2) security services; (3) firms authorized to manufacture, distribute or" }, { "docid": "5857673", "title": "", "text": "Id. at *11-12. The court found it compelling that “[t]he decision to polygraph, who to polygraph, and the decision to terminate” were all ultimately made by Cavender. Id. Calbillo argues that summary judgment on his EPPA claim was inappropriate because a genuine issue of material fact exists as to whether Allied qualified as an employer under the EPPA. Calbillo’s appeal thus presents an issue of first impression in this circuit: whether and under what circumstances a polygraph examiner is an “employer” within the meaning of the EPPA’s definition of that term. The EPPA makes it illegal for an employer to require or request that an employee take a polygraph examination. 29 U.S.C. § 2002(1). Employers are also prohibited from discharging any employee who fails or refuses to take a polygraph examination. Id. at § 2002(3). Congress created a limited exemption that permits an employer to request an employee to submit to a polygraph examination if it “is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft.” Id. at § 2006. The EPPA provides for private enforcement by creating a cause of action for employees against “an employer who violates [the EPPA] ... for such legal or equitable relief as may be appropriate.” Id. at § 2005(c)(1) (emphasis added). The EPPA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Id. at § 2001(2). Pursuant to the Secretary of Labor’s duty to “issue such rules and regulations as may be necessary or appropriate to carry out [the EPPA],” id. at § 2004(a), the Secretary promulgated the following regulation: The term employer means any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee. A polygraph examiner either employed for or whose services are otherwise retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with respect to the examinees. 29 C.F.R. § 801.2(c) (2001). Although we have found no circuit court" }, { "docid": "10613523", "title": "", "text": "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id. The EPPA restricts the conduct of, and provides remedies against, an “employer” regarding the use of lie detector tests. See 29 U.S.C. §§ 2002, 2005. The statute defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Id. § 2001(2). Under the regulations, a polygraph examiner generally is not considered an “employer.” See 29 C.F.R. § 801.2(c) (“A polygraph examiner either employed for or whose services are retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with respect to the examinees.”). “Ordinarily,” of course, does not mean “never.” Other courts have adopted the “economic reality” test to determine whether a polygraph examiner is an “employer” for purposes of the EPPA. This test focuses on whether “as a matter of economic reality, that person or entity exerts some degree of control over the employer’s compliance with EPPA.” Rubin v. Tourneau, Inc., 797 F.Supp. 247, 253 (S.D.N.Y.1992). It stems from cases interpreting the Fair Labor Standards Act, which defines “employer” the same way as the EPPA. See id. at 252 (“Just as the phrase ‘acting directly or indirectly in the interest of an employer in relation to an employee' is applied to effect FLSA’s purpose, so too, ... must it be applied to effect EPPA’s purpose — -restricting the use of lie detectors in the work place.”). Given Congress’s use of the same language in defining the term “employer” in the two statutes, and because we agree with the reasoning of other courts that have adopted this test, we approve using the economic reality test in evaluating whether a polygraph examiner is an “employer” for purposes of EPPA. The Fifth Circuit summarized four factors courts have considered in applying the economic reality test: [District courts have considered whether the examiner (1) decided that a polygraph examination should be administered; (2) decided which employee would be examined; (3) provided expertise or advice to the employer" }, { "docid": "10613528", "title": "", "text": "the appropriate allegations of employer status. Id. The court suggested that, if the evidence did not show that the examiner did more than administer the tests, the examiner should file a motion for summary judgment. Id. In contrast to the situation in Rubin, Lucero did not make any assurances to the Co-op about EPPA compliance, and LPS was not hired to ensure EPPA compliance. Notably, Lucero’s contacts with the Co-op were through the Co-op’s attorney, whose duty it was to advise the Co-op about its legal responsibilities. See Calbillo, 288 F.3d at 728 n. 4 (stating that it was not reasonable to infer that the employer looked to the polygraph examiner for legal advice, when the employer had hired attorneys to advise it). Further, the statements were in the nature of gratuitous comments, not so much about EPPA compliance, as explanations why LPS would not assist the Co-op. In Calbillo, the Fifth Circuit declined to find employer status for an examiner, despite inferring from the record that the examiner “may have answered the attorneys’ questions regarding the technical procedures involved in performing a polygraph examination and he might have even discussed some of the general requirements under the EPPA and the Secretary’s regulations.” 288 F.3d at 728 n. 4. Appellants contend that Lucero should have known the arrangement was a sham to allow the Co-op to circumvent the EPPA, arguing “from the very beginning LPS knew that the Cooperative was the driving force behind the polygraphs. LPS then worked with the Cooperative to satisfy the employer’s request for these polygraphs.” Aplt. Br. at 17. So long as LPS did not involve itself sufficiently to be considered an “employer,” however, whether it knew or should have known that the arrangement was a sham is not relevant to its liability under the EPPA. Simply put, if LPS is not an “employer,” it is not subject to EPPA liability. An examiner is not necessarily liable merely because a particular examination violated the EPPA. See Calbillo, 288 F.3d at 728 (affirming summary judgment for examiner); Fallin v. Mindis Metals, Inc., 865 F.Supp. 834, 840" }, { "docid": "5857676", "title": "", "text": "seq. 797 F.Supp. at 251. After determining that the term “employer” under the EPPA should be construed similarly to judicial interpretations of the word for purposes of the FLSA, the court concluded that since the meaning of “employer” under the FLSA includes those who, as a matter of economic reality, exercise some degree of control over an employee’s terms and conditions of employment, an “economic reality” test was appropriate for the EPPA as well. Id. at 251-52. Thus, the court held that a polygraph examiner was an employer under the EPPA only where, “as a matter of economic reality, [the polygraph examiner] exerts some degree of control over the employer’s compliance with the EPPA.” Id. at 253. The district courts in Fallin, Kluge, James, and Calbil-lo followed Rubin in applying the “economic reality” test. Calbillo urges us to apply the plain meaning of the statutory and regulatory definitions of “employer,” as opposed to the “economic reality” test. He contends that a polygraph examiner hired by an employer to administer an examination may be considered an employer and subject to suit under the EPPA if the examiner’s services were not retained solely for the purposes of administering the examination. While the EPPA’s definition of employer is broad and what constitutes “acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee” is ambiguous, we decline to adopt a per se rule that a polygraph examiner is subject to suit under the EPPA if he or she has any role in a theft investigation beyond administering the examination. The Secretary’s regulation does not clarify when a polygraph examiner is deemed an employer under the EPPA, it merely attempts to “exclude [from the EPPA’s definition of employer] a polygraph examiner employed for the sole purpose of conducting a polygraph test.” 56 Fed.Reg. 9046-01 (Mar. 4,1991). We conclude that the “economic reality” test is the better approach; thus, whether a polygraph examiner is an employer under the EPPA requires consideration of whether the examiner went beyond the role of an independent entity, and exerted control, as a" }, { "docid": "10613522", "title": "", "text": "against the Co-op went to trial, and a jury found in favor of Fernandez and Abreu. Fernandez and Abreu now appeal the pre-trial disposition of their EPPA claims against LPS, and Abreu appeals the pre-trial disposition of his tort claims against the DAO and Armijo and his § 1983 conspiracy claim against Armijo and the Co-op. II. A. First, both Fernandez and Abreu assert that LPS violated the EPPA. The district court granted summary judgment to LPS on the grounds that the EPPA only covers “employers” and that LPS was not an “employer” as defined by that statute. Summary judgment is appropriate if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). This court reviews “the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). “[W]e view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id. The EPPA restricts the conduct of, and provides remedies against, an “employer” regarding the use of lie detector tests. See 29 U.S.C. §§ 2002, 2005. The statute defines “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee or prospective employee.” Id. § 2001(2). Under the regulations, a polygraph examiner generally is not considered an “employer.” See 29 C.F.R. § 801.2(c) (“A polygraph examiner either employed for or whose services are retained for the sole purpose of administering polygraph tests ordinarily would not be deemed an employer with respect to the examinees.”). “Ordinarily,” of course, does not mean “never.” Other courts have adopted the “economic reality” test to determine whether a polygraph examiner is an “employer” for purposes of the EPPA. This test focuses on whether “as a matter of economic reality, that person or entity exerts some degree of control over the employer’s compliance with EPPA.” Rubin" }, { "docid": "10613527", "title": "", "text": "a law enforcement investigation and that the Co-op might be able to get the results of the tests from the DAO. We have found only one case discussing the “advice” factor in any detail. In Rubin v. Tourneau, Inc., the examiner, who was also an investigator, was hired to investigate missing inventory. 797 F.Supp. at 248. He allegedly assured the employer he would identify which employees could lawfully be polygraphed and he would conduct the examinations in compliance with the EPPA. Id. at 248-49, 253. Construing the facts in the light most favorable to the appellants, the court determined the examiner might qualify as an employer and declined to dismiss the case. Id. at 253. The only other case allowing a claim against a polygraph examiner to proceed because the examiner may have exercised “some degree of control over the employer’s compliance with the EPPA” does not explain exactly what the examiner did. James v. Professionals’ Detective Agency, Inc., 876 F.Supp. 1013, 1016 (N.D.Ill.1995). That case involved a motion to dismiss, and the complaint made the appropriate allegations of employer status. Id. The court suggested that, if the evidence did not show that the examiner did more than administer the tests, the examiner should file a motion for summary judgment. Id. In contrast to the situation in Rubin, Lucero did not make any assurances to the Co-op about EPPA compliance, and LPS was not hired to ensure EPPA compliance. Notably, Lucero’s contacts with the Co-op were through the Co-op’s attorney, whose duty it was to advise the Co-op about its legal responsibilities. See Calbillo, 288 F.3d at 728 n. 4 (stating that it was not reasonable to infer that the employer looked to the polygraph examiner for legal advice, when the employer had hired attorneys to advise it). Further, the statements were in the nature of gratuitous comments, not so much about EPPA compliance, as explanations why LPS would not assist the Co-op. In Calbillo, the Fifth Circuit declined to find employer status for an examiner, despite inferring from the record that the examiner “may have answered the attorneys’ questions" }, { "docid": "10613526", "title": "", "text": "LPS advised the Co-op how employees should be selected for the polygraphs. Again, this inference is too attenuated to support liability. The record indicates that Lucero stated that he could not test Co-op employees as Leger originally requested, and that he would perform tests if requested by law enforcement and the individuals to be tested were identified by law enforcement. There is no suggestion that Lucero suggested or identified the specific employees to be tested, directly or indirectly. This situation is distinguishable from the examiner having a role in selecting the particular employees to be tested. Cf. Rubin, 797 F.Supp. at 253 (noting that the examiner allegedly “represented it would inform [the employer] which employees could be examined lawfully”). Thus, this factor also does not support imposing liability on LPS. Finally, appellants assert that Lucero advised the Co-op about compliance with the EPPA and the circumstances under which the Co-op employees should be polygraphed. In support, they primarily rely on Lucero’s comments to Leger that the tests would have to be taken in conjunction with a law enforcement investigation and that the Co-op might be able to get the results of the tests from the DAO. We have found only one case discussing the “advice” factor in any detail. In Rubin v. Tourneau, Inc., the examiner, who was also an investigator, was hired to investigate missing inventory. 797 F.Supp. at 248. He allegedly assured the employer he would identify which employees could lawfully be polygraphed and he would conduct the examinations in compliance with the EPPA. Id. at 248-49, 253. Construing the facts in the light most favorable to the appellants, the court determined the examiner might qualify as an employer and declined to dismiss the case. Id. at 253. The only other case allowing a claim against a polygraph examiner to proceed because the examiner may have exercised “some degree of control over the employer’s compliance with the EPPA” does not explain exactly what the examiner did. James v. Professionals’ Detective Agency, Inc., 876 F.Supp. 1013, 1016 (N.D.Ill.1995). That case involved a motion to dismiss, and the complaint made" }, { "docid": "5857679", "title": "", "text": "(4) decided whether the examined employee would be subjected to disciplinary action, or merely reported the results of the polygraph examination to the employer. See Calbillo, 2000 WL 33348243, at *12; Kluge, 1994 WL 409575, at *3; Fallin, 865 F.Supp. at 840; Rubin, 797 F.Supp. at 253. We do not, and need not, further define the scope of the “economic reality” test in determining whether Allied exercised enough control over Ca- vender’s compliance with the EPPA to warrant being considered an employer. Here, there is no evidence that Trease made the decision to polygraph or decided who to polygraph. Although there is evidence that Trease was involved in the decision to interview Cavender employees regarding the missing Froen, Trease made this recommendation in his role as a private investigator, not as a polygraph examiner. The evidence in the record is insufficient to support Calbillo’s contention that Trease was also involved in the decision to polygraph Calbillo. There is no evidence that Trease provided guidance to ensure that Cavender would comply with the provisions of the EPPA or that Trease was hired to ensure such compliance. As the district court concluded, the evidence in the record shows that Cavender decided Calbillo should undergo a polygraph examination and subsequently terminated Cal-billo, and that Trease was hired as a private investigator to interview employees and as a polygraph examiner to perform a polygraph examination on Calbillo. Accordingly, based on the record presented, we find that Calbillo failed to create a genuine issue of material fact as to whether Allied exercised sufficient control over Cavender’s compliance with the EPPA to qualify as an employer. III. Negligence To recover under a negligence cause of action, Calbillo must establish that Allied owed a legal duty to him, and then, that Allied breached the duty and Calbillo suffered damages proximately caused by the breach. See, e.g., Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex.1999). The district court held that Allied owed no legal duty to use reasonable care in conducting the employee investigation and administering the polygraph examination, much less a duty to adhere to" } ]

[ { "docid": "22124855", "title": "", "text": "extent thereof, and acting as one body in all the matters over which the combination extends, that constitutes the alleged evil, and in regard to which, so far as the combination operates upon and restrains interstate commerce, Congress has power to legislate and to prohibit. The prohibition of such contracts may in the judgment of Congress be one of the reasonable necessities for the proper regulation of commerce, and Congress is the judge of such necessity and propriety, unless, in case of a possible gross perversion of the principle, the courts might be applied to for relief. The cases cited by the respondents’ counsel in regard to the general constitutional right of the citizen to make contracts relating to his lawful business are not inconsistent with the existence of the power of Congress to prohibit contracts of the nature involved in this case. The power to regulate commerce has no limitation other than those prescribed in the Constitution. The power, however, does not carry with it the right to destroy or impair those limitations and guarantees which are also placed in the Constitution or in any of the -amendments to that' instrument. Monongahela Navigation Co. v. United States, 148 U. S. 312-336; Interstate Commerce Commission v. Brimson, 154 U. S. 447-479. Among these limitations and guarantees counsel refer to those which provide that no person shall be deprived of life, liberty or property without due process of law, and that private property shall not be taken for public use without just compensation. The latter limitation is, we think, plainly irrelevant. As to the former, it is claimed that the’ citizen is deprived •of his liberty without due process of law when, by a general statute, he is arbitrarily deprived of the right to make a contract of the nature herein involved. • The case of Allgeyer v. Louisiana, 165 U. S. 578, is cited as authority for the statement concerning the right to contract. In speaking of the meaning of the word “ liberty,” as used in the Fourteenth Amendment to’ the Constitution, it was said in that case to" } ]

[ { "docid": "19775387", "title": "", "text": "649; Truax v. Raich, 239 U. S. 33; Ex Parte Orozco, 201 Fed. 106; Wong Wing v. United States, 163 U. S. 228; that the war powers of Congress do not suspend the guaranties made in other sections of the Constitution. United States v. L. Cohen Grocery Company, 255 U. S. 81; Ex Parte Milligan, 4 Wall. 2, 121-127; Monongahela Navigation Co. v. United States, 148 U. S. 312; United States v. Joint Traffic Association, 171 U. S. 505; McCray v. United States, 195 U. S. 27; United States v. Cress, 243 U. S. 316; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146; Anson Mills v. United States, 19 C. Cls. 79. But the question presented is whether or not the refusal to grant clearance to the Zee-landia constituted a “ taking of private property, within the meaning of the fifth amendment. Of course, if the detention in question constituted a taking of private property, within the scope of the constitutional inhibition, the plaintiff is entitled to compensation. But we are of the opinion that the acts of the United States in this case did not constitute such a “ taking ” within the language of the amendment. It has been repeatedly held that acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are not a “ taking ” within the meaning of the constitutional provision. Transportation Co. v. Chicago, 99 U. S. 635; United States v. Garver, 278 U. S. 294; Graham v. United States, 2 C. Cls. 327. In order to come within the constitutional provision, there must be shown to have been an exercise, by the United States, of a proprietary right, for a greater or less time, in the property taken. Graham v. United States, supra. Furthermore, a taking, within the meaning of the constitutional provision must have been an intentional appropriation of the property to the public use, and the appropriation must have been authorized by law. Atwater & Co. v. United States, 275 U. S. 188; Transportation" }, { "docid": "22147909", "title": "", "text": "S. 72, 82, 84). The provision in the contract sued on purporting to give a lien upon any warrant issued was void under § 3477 of the Revised Statutes, Nutt v. Knut, 200 U. S. 12, 20. It is urged that the act here in question should be construed as limiting only the proportion of the specific funds received from the Government which may be applied to payment of attorneys’ fees; but the second paragraph of the law leaves no room for construction. It provides that: “It shall be unlawful for any . . . attorney . . . to . . . receive any sum which in the aggregate exceeds twenty per centum ” of the claim. Calhoun contends, however, that if the act is construed as limiting the amount recoverable from a claimant upon his personal obligation, it is void as applied to contracts in existence at the time of its passage; at least where, as here, the services contemplated had then been substantially performed. That an act limiting the compensation of attorneys in the prosecution of claims against the Government is valid also as to contracts which had been entered into before its passage was expressly held in Ball v. Halsell, supra. The act there in question was passed seventeen years after the date of the contract, and the attorney had performed important services before its enactment. Here, it is said, substantially all the services required of Calhoun had been performed when the act was passed. The difference in the percentage of services performed cannot here affect the legal result. An appropriate exercise by a State of its police power is consistent with the Fourteenth Amendment, although it results in serious depreciation of property values; and the United States may, consistently with the Fifth Amendment, impose for a permitted purpose, restrictions upon property which produce like results. Lottery Case, 188 U. S. 321, 357; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146. The sovereign" }, { "docid": "22354482", "title": "", "text": "upon all. Again let it be conceded that the causing the tax for the annual period to become due in September, 1909, is to give it in some respects a retroactive effect, such concession does not cause the act to be beyond the power of Congress under the Constitution to adopt. Flint v. Stone-Tracy Company, 220 U. S. 107 and authorities there cited. While the rule is that statutes should be so construed as to prevent them from operating retroactively, that principle is one of construction and not of reconstruction and therefore does not authorize' a judicial reénactmént by interpretation of a statute to save it from producing a retroactive effect. As under, the meaning which we thus give the statute the admitted use of the vessel was within its provision and therefore the amount due for excise was rightfully imposed and under our interpretation was due when demanded, we must consider' whether the asserted repugnancy of the statute to the Constitution is well founded. It has been conclusively determined that the requirement of uniformity which the Constitution imposes upon Congress in the levy of excise taxes is not an intrinsic uniformity, but merely a geographical one. Flint v. Stone-Tracy Company, 220 U. S. 107; McCray v. United States, 195 U.S. 27; Knowlton v. Moore, 178 U. S. 41. It is also settled beyond dispute that the Constitution is not self-destructive. In other words, that the powers which it confers on the one hand it does not immediately take away on the other; that is to say, that the authority to tax which is given in express terms is not limited or restricted by the subsequent provisions of the Constitution or the amendments thereto, especially by the due process clause of the Fifth Amendment. McCray v. United States,. 195 U. S,. 27 and authorities there cited. Nor is there anything in Carroll v. Greenwich Insurance Company, 199 U. S. 401, or Twining v. New Jersey, 211 U. S. 78, which in the remotest degree nullifies or restricts the principle thus stated. Indeed it is apparent, if the suggestion as to" }, { "docid": "22741321", "title": "", "text": "the adequacy of the remedial devices is made even -more apparent when one remembers that the attack upon the statute in its labor regulations assumes the existence of a controversy that may never become actual. The failure to agree upon a wage scale or upon maximum hours of daily or weekly labor may make the statutory scheme abortive in the very phases and aspects that the court has chosen to condemn. What the code will provide as to wages and hours of labor, or. whether it will provide anything, is still in the domain of prophecy. The opinion of the court begins at the wrong end. To adopt a homely form of words, the complainants have been crying before they are really hurt. My vote is for affirmance. I am authorized to state that Mr. Justice Brandéis and Mr. Justice. Stone join in this opinion.- Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156: “The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations (Ex parte Milligan, 4 Wall. 2, 121-127; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Assn., 171 U. S. 505, 571; McCray v. United States, 195 U. S. 27, 61; United States v. Cress, 243 U. S. 316, 326); but the Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power. In re Kemmler, 136 U. S. 436, 448; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410.” Cf. Brooks v. United States, 267 U. S. 432, 436, 437; Nebbia v. New York, 291 U. S. 502, 524, The dates and titles are given in the brief for the Government in No. 636, at pp. 15-18. See also the Report of tbe Fifteenth Annual Meeting of the National Coal Association, October 26-27, 1934, and the statement of the resolutions adopted at the Sixteenth Annual Meeting as reported at hearings preliminary to the passage of this Act. Hearings before a Subcommittee" }, { "docid": "22789219", "title": "", "text": "respect to property destroyed by military operations, United States v. Pacific Railroad, 120. U. S. 227, 239) subject to the Fifth Amendment. United States v. Russell, 13'Wall'. 623, 627. The severe restriction imposed by the act upon the disposition.of liquors amounts to a taking of property; and.heing uncompensated would, at least as applied to liquors acquired before the passage of the act, exceed evén the-restriction held to be admissible under the . broad police powers possessed by the States. Therefore, since it fails to make provision, for compensation, which in every other instance Congress made when authorizing the taking or use of property for war purposes, it is void. Such is the argument of the plaintiffs below. - That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution,, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of. its police power, or that it may tend to accomplish a similar purpose. Lottery Case, 188 U. S. 321, 357; McCray v. United States, 195 U. S. 27; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Seven Cases v. United States, 239 U. S. 510, 515; United States v. Doremus, 249 U. S. 86, 93-94. The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations (Ex parte Milligan, 4 Wall. 2, 121-127; Monongdhela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Assn., 171 U. S. 505, 571; McCray v. United States, 195 U. S. 27, 61; United States v. Cress, 243 U. S. 316, 326); but the Fifth Amendment imposes in this respect no greater limitation upon the national .power than does the Fourteenth Amendment upon" }, { "docid": "2237077", "title": "", "text": "by a state of its police power, or that it may tend to accomplish a similar purpose. * * * if fhg nature and conditions of a restriction upon the use or disposition of property is such that a state could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation.” Since Congress has the power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (Constitution, art. 4, § 3, cl. 2), this power of the United States, analogous to the police power of a state, is clearly applicable where the lands of the United States are concerned. Federal Power Commission v. Idaho Power Co., 344 U. S. 17, 21, 73 S.Ct. 85, 97 L.Ed. 15; McKelvey v. United States, 260 U.S. 353, 359, 43 S.Ct. 132, 67 L.Ed. 301; Utah Power & Light Co. v. United States, 243 U.S. 389, 403-405, 37 S.Ct. 387, 61 L.Ed. 791; Camfield v. United States, 167 U.S. 518, 525, 17 S.Ct. 864, 42 L.Ed. 260; United States v. Gratiot, 14 Pet. 526, 536, 537, 39 U.S. 526, 536, 537, 10 L.Ed. 573. The telephone line here in question was originally located by permission granted by state statute, and the law is well established that a statutory, permissive right of use of public highways by public utilities is subordinate to the rights of the public; that the original location of poles or other facilities in a public highway does not create an irrevocable right to have such poles and facilities remain forever in the same place; and that a utility company may be required to relocate its lines at its own expense when such relocation is demanded by public necessity and for public safety and welfare. Erie Railroad Co. v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322; Western Union Telegraph Co. v. City of Richmond, 224 U.S. 160, 32 S.Ct. 449, 56 L.Ed." }, { "docid": "6514724", "title": "", "text": "any means, appearing to it most eligible and appropriate, which are adapted to the end to be accomplished and consistent with the letter and spirit of the Constitution. United States v. Fisher, 2 Cranch, 358, 395; Martin v. Hunter’s Lessee, 1 Wheat. 304, 326; McCulloch v. Maryland, supra, pp. 421, 422; Ex parte Curtis, 106 U. S. 371, 372; Legal Tender Case, 110 U. S. 421, 440; In re Rapier, 143 U. S. 110, 134; Logan v. United States, 144 U. S. 263, 283; Fong Yue Ting v. United States, 149 U. S. 698, 712; Lottery Case, supra, p. 355; Hoke v. United States, 227 U. S. 308, 323. Furthermore, aside from this fundamental rule, the Eighteenth Amendment specifically confers upon Congress the power to enforce “by appropriate legislation” the constitutional prohibition of the traffic in intoxicating liquors for beverage purposes. This enables Congress to enforce the prohibition “by appropriate means.” National Prohibition Cases, supra, p. 387. It is likewise well settled that where the means adopted by Congress are not prohibited and are calculated to effect the object intrusted to it, this Court may not inquire into the degree of their necessity; as this would be to pass the line which circumscribes the judicial department and to tread upon legislative ground. McCulloch v. Maryland, supra, p. 423; Legal Tender Case, supra, p. 450; Fong Yue Ting v. United States, supra, p. 713. Nor may it enquire as to the wisdom of the legislation. Legal Tender Case, supra, p. 450; McCray v. United States, 195 U. S. 27, 54; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 141. What it may consider is whether that which has been done by Congress has gone beyond the constitutional limits upon its legislative discretion. Ex parte Curtis, supra, p. 373. It is clear that Congress, under its express power to enforce by appropriate legislation the prohibition of traffic in intoxicating liquors for beverage purposes, may adopt any eligible and appropriate means to make that prohibition effective. The possible abuse of a power is not an argument against its existence. Lottery Case, supra," }, { "docid": "22882468", "title": "", "text": "jurisdiction. In its international relations, the United States is as competent as other nations to enter into such negotiations, apd to become a party to such con-' ventions, without any disadvantage due to limitation of-its sovereign power, unless that limitation is necessarily found to be imposed by its own Constitution. ■ Respondents urge that constitutional restriction precluding the federal estate tax in question is found in the due process clause of the Fifth Amendment. The point, being solely one of jurisdiction to tax, involves none of the other considerations raised by confiscatory or arbitrary legislation inconsistent with the fundamental conceptions of justice which are embodied in the due process clause for the protection of life, liberty and property of all persons—citizens and friendly aliens alike. Russian Volunteer Fleet v. United States, 282 U. S. 481, 489; Nichols v. Coolidge, 274 U. S. 531, 542; Heiner v. Donnan, 285 U. S. 312, 326. If in the instant case the Federal Government had' jurisdiction to impose the tax, there is manifestly no ground for assailing it. Knowlton v. Moore, 178 U. S. 41, 109; McCray v. United States, 195 U. S. 27, 61; Flint v. Stone Tracy Co., 220 U. S. 107, 153, 154; Brushaber v. Union Pacific R. Co., 240 U. S. 1, 24; United States v. Doremus, 249 U. S. 86, 93. Respondents’ reliance is upon the decisions of this Court with respect to the limitation of the taxing power of the States under the due process clause of the Fourteenth Amendment. Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Baldwin v. Missouri, 281 U. S. 586; Beidler v. South Carolina Tax Commission, 282 U. S. 1; First National Bank v. Maine, 284 U. S. 312. They insist that the like clause of the Fifth Amendment imposes a corresponding restriction upon the taxing power of the Federal Government. The argument is specious, but it ignores an established distinction. Due process requires that the limits of jurisdiction shall not be transgressed. That requirement leaves the limits of jurisdiction to be ascertained in each case .with appropriate-regard to the" }, { "docid": "22882469", "title": "", "text": "v. Moore, 178 U. S. 41, 109; McCray v. United States, 195 U. S. 27, 61; Flint v. Stone Tracy Co., 220 U. S. 107, 153, 154; Brushaber v. Union Pacific R. Co., 240 U. S. 1, 24; United States v. Doremus, 249 U. S. 86, 93. Respondents’ reliance is upon the decisions of this Court with respect to the limitation of the taxing power of the States under the due process clause of the Fourteenth Amendment. Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204; Baldwin v. Missouri, 281 U. S. 586; Beidler v. South Carolina Tax Commission, 282 U. S. 1; First National Bank v. Maine, 284 U. S. 312. They insist that the like clause of the Fifth Amendment imposes a corresponding restriction upon the taxing power of the Federal Government. The argument is specious, but it ignores an established distinction. Due process requires that the limits of jurisdiction shall not be transgressed. That requirement leaves the limits of jurisdiction to be ascertained in each case .with appropriate-regard to the distinct spheres of activity of State and Nation. The limits of State power aré defined in view of the relation of the ^States, to each other in the Federal Union. The bond of the Constitu- - tion qualifies their jurisdiction. This is the principle which underlies the decisions cited' by respondents. These decisions established that proper regard for the relation of the States in our system required that the property under consideration, should be taxed in only one State and that jurisdiction to tax was restricted accordingly. In Farmers Loan & Trust Co. v. Minnesota, supra, the Court applied the principle to intangibles, and referring tQ the contrary view which had prevailed, said (p. 209): “ The inevitable tendency of that view is to disturb good relations among the States and produce the kind of discontent expected to subside after establishment of the Union. The Federalist, No. VII. The practical effect of it has been bad; perhaps two-thirds of the States have endeavored to avoid the evil by resorting to reciprocal exemption laws.” , It" }, { "docid": "22789221", "title": "", "text": "state power. In re Kemmler, 136 U. S. 436, 448; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410. If the nature and conditions of a restric tion upon the use or disposition of property is such that a State could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation; for prohibition of the liquor traffic is conceded to be an. appropriate, means of increasing our war efficiency. There was no appropriation of the liquor for public purposes. The War-Time Prohibition Act fixed a period of seven months and nine days from its passage during which liquors could be disposed of free from any restriction imposed by the Federal Government. Thereafter, until the end of the war and the termination of demobilization, it permits an unrestricted sale for export' and, within the United States, sales for other than beverage purposes.The uncompensated restriction upon the disposition of liquors imposed by this act is of a nature far less severe than the restrictions upon the use of property acquired before the enactment of the prohibitory law which were held to be permissible in cases arising under the Fourteenth Amendment. Mugler v. Kansas, 123 U. S. 623, 668; Kidd v. Pearson, 128 U. S. 1, 23. The question whether an absolute prohibition of sale could be applied by a State to liquor acquired before the enactment of-the prohibitory law has been raised by this court but not answered, because unnecessary to a decision. Bartemeyer v. Iowa, 18 Wall. 129, 133; Beer Co. v. Massachusetts, 97 U. S. 25, 32-33; Eberle v. Michigan, 232 U. S. 700, 706; Barbour v. Georgia, 249 U. S. 454, 459. See, however, Mugler v. Kansas, supra, pp. 623, 625, 657. But no reason appears why a state statute, which postpones its' effective date long enough to enable those engaged in the business to dispose of stocks on hand at the date of its enactment, should be obnoxious to the Fourteenth Amendment;" }, { "docid": "22789220", "title": "", "text": "may be attended by the same incidents which attend the exercise by a State of. its police power, or that it may tend to accomplish a similar purpose. Lottery Case, 188 U. S. 321, 357; McCray v. United States, 195 U. S. 27; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Seven Cases v. United States, 239 U. S. 510, 515; United States v. Doremus, 249 U. S. 86, 93-94. The war power of the United States, like its other powers and like the police power of the States, is subject to applicable constitutional limitations (Ex parte Milligan, 4 Wall. 2, 121-127; Monongdhela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Assn., 171 U. S. 505, 571; McCray v. United States, 195 U. S. 27, 61; United States v. Cress, 243 U. S. 316, 326); but the Fifth Amendment imposes in this respect no greater limitation upon the national .power than does the Fourteenth Amendment upon state power. In re Kemmler, 136 U. S. 436, 448; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410. If the nature and conditions of a restric tion upon the use or disposition of property is such that a State could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation; for prohibition of the liquor traffic is conceded to be an. appropriate, means of increasing our war efficiency. There was no appropriation of the liquor for public purposes. The War-Time Prohibition Act fixed a period of seven months and nine days from its passage during which liquors could be disposed of free from any restriction imposed by the Federal Government. Thereafter, until the end of the war and the termination of demobilization, it permits an unrestricted sale for export' and, within the United States, sales for other than beverage purposes.The uncompensated restriction upon the disposition of liquors imposed" }, { "docid": "22385615", "title": "", "text": "percentage for the prosecution of claims against the Government, was sustained, although it had the effect of putting an end to an existing contract; This Court said (pp. 175-176): “An appropriate exercise by a State of its police power is consistent with the Fourteenth Amendment, although it results in serious depreciation of property values; and the United States may, 'consistently with the Fifth Amendment, impose for a permitted purpose, restrictions upon property which produce like results. Lottery Case, 188 U. S. 321, 357; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146. The sovereign right of the Government is not less because the property affected happens to be a contract. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 484; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372.” In Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, it was held that an act of Congress, prohibiting the issuance of free transportation by interstate common carriers which invalidated a contract for transportation previously entered into and valid when made, did not have the effect of taking private property without compensation. The Court, speaking through Mr. Justice Harlan, said (p. 484): “ It is not determinative of the present question that the commerce act as now construed will render the contract of no value for the purposes for which it was made. In Knox v. Lee, 12 Wall. 457, above cited, the court, refer ring to the Fifth Amendment, which forbids the taking of private property for public use without just compensation or due process of law, said:' ‘ That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have' any bearing upon or to inhibit laws that indirectly work harm and loss to individuals. A new .tariff, an embargo, a draft, or a war, may inevitably" }, { "docid": "22147910", "title": "", "text": "in the prosecution of claims against the Government is valid also as to contracts which had been entered into before its passage was expressly held in Ball v. Halsell, supra. The act there in question was passed seventeen years after the date of the contract, and the attorney had performed important services before its enactment. Here, it is said, substantially all the services required of Calhoun had been performed when the act was passed. The difference in the percentage of services performed cannot here affect the legal result. An appropriate exercise by a State of its police power is consistent with the Fourteenth Amendment, although it results in serious depreciation of property values; and the United States may, consistently with the Fifth Amendment, impose for a permitted purpose, restrictions upon property which produce like results. Lottery Case, 188 U. S. 321, 357; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146. The sovereign right of the Government is not less because the property-affected happens to be a contract. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 484; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372. Here, unlike New York Central & Hudson River R. R. Co. v. Gray, 239 U. S. 583, 587, a performance of a substitute for the obligation undertaken and later prohibited by the statute is impossible, because the act forbids the collection or receipt of any compensation in excess of twenty per cent. In the case at bar there are special reasons why the contract cannot prevail over the statute enacted later. At the time when the contract was entered into there was no legislation general or special which conferred upon Massie any right of recovery even if he should establish to the satisfaction of Congress that his claim was equitable. A statute making an appropriation to pay the claim was thus a condition precedent to liability on the part of Massie to Calhoun; and" }, { "docid": "22354483", "title": "", "text": "which the Constitution imposes upon Congress in the levy of excise taxes is not an intrinsic uniformity, but merely a geographical one. Flint v. Stone-Tracy Company, 220 U. S. 107; McCray v. United States, 195 U.S. 27; Knowlton v. Moore, 178 U. S. 41. It is also settled beyond dispute that the Constitution is not self-destructive. In other words, that the powers which it confers on the one hand it does not immediately take away on the other; that is to say, that the authority to tax which is given in express terms is not limited or restricted by the subsequent provisions of the Constitution or the amendments thereto, especially by the due process clause of the Fifth Amendment. McCray v. United States,. 195 U. S,. 27 and authorities there cited. Nor is there anything in Carroll v. Greenwich Insurance Company, 199 U. S. 401, or Twining v. New Jersey, 211 U. S. 78, which in the remotest degree nullifies or restricts the principle thus stated. Indeed it is apparent, if the suggestion as to the meaning of those cases were assented to, it would result in rendering the Constitution unconstitutional. This certainly was the view entertained by the pleader when the answer in the case was prepared, since the sole attack on the constitutionality of the statute was based upon the assertion that it was repugnant to the due process clause of the Fifth Amendment. And such also is the fine of the argument at bar where the fundamental rights secured by the Fifth Amendment are constantly referred to as the basis upon which the unconstitutionality of the statute is urged. Is there foundation for this claim under the Fifth Amendment? is then the issué, and that of course requires a statement of the grievances which it is asserted result from upholding the tax. They all come to this, that to impose a burden in the shape of a tax upon the use of a foreign-built yacht when a like tax is not imposed on the use of a domestic yacht under similar circumstances is so beyond the power" }, { "docid": "22385614", "title": "", "text": "Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 690; Cincinnati v. Louisville & Nashville R. R. Co., 223 U. S. 390, 400, and if taken for public use the Government would be liable. But destruction' of, or injury to, property is frequently accomplished without a “ taking ” in the constitutional sense. To prevent thé'spreading of a fire, property may be destroyed without compensation to the ownér, Bowditch v. Boston, 101 U. S. 16, 18; a doctrine perhaps to some extent resting on tradition. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393. There are many laws and governmental operations which injuriously affect the value of or destroy property — for example, restrictions upon the height or character of buildings, destruction of diseased cattle, trees, etc., to prevent contagion — but for which no reinedy is afforded. Contracts in this respect do not differ from other kinds of property. See Calhoun v. Massie, 253 U. S. 170, where an act of Congress invalidating contracts made with attorneys for compensation exceeding a certain percentage for the prosecution of claims against the Government, was sustained, although it had the effect of putting an end to an existing contract; This Court said (pp. 175-176): “An appropriate exercise by a State of its police power is consistent with the Fourteenth Amendment, although it results in serious depreciation of property values; and the United States may, 'consistently with the Fifth Amendment, impose for a permitted purpose, restrictions upon property which produce like results. Lottery Case, 188 U. S. 321, 357; Hipolite Egg Co. v. United States, 220 U. S. 45, 58; Hoke v. United States, 227 U. S. 308, 323; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146. The sovereign right of the Government is not less because the property affected happens to be a contract. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, 484; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372.” In Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, it was held that" }, { "docid": "22628404", "title": "", "text": "the amended section plainly imposes a'penalty for the acts which it includes when committed after its.passage, the fact that the section before its reenactment contained no penalty is of no moment.- This must be.the case unless it can be said that the failure at one time to impose a penalty for a forbidden act furnishes an adequate ground for preventing the subsequent enforcement of a penalty which is specifically and unmistakably provided. We are of opinion that the court below was cléarly right in ruling that the decisions of this court indisputably establish that the mere existence of a state of war. could not suspend or change the operation upon the power of Congress-of the guaranties and limitations of the Fifth and Sixth Amendments as to questions such as we are here passing upon. Ex parte Milligan, 4 Wall. 2, 121-127; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Association, 171 U. S. 505, 571; McCray v. United States, 195 U. S. 27, 61; United States v. Cress, 243 U. S. 316, 326; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156. It follows that, in testing the operation of the Constitution upon the subject here involved, the question of the existence or non-existence of a state of war becomes negligible, and we put it out of view. The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question, that is, whether the words “That it is hereby made unlawful for any person willfully .. . . to make any unjust or unreasonable rate or charge in handling or- dealing in or with any necessaries,” constituted a fixing by Congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion, so clearly results from their mere statement as to render elaboration.on the subject wholly unnecessary. Observe that. the. section forbids no specific or definite act. It confines the subject-matter of the investigation which" }, { "docid": "2237076", "title": "", "text": "it were operated by our own state.” See also Yarborough v. North Carolina Park Commission, 196 N.C. 284, 145 S.E. 563. The state may properly utilize Federal facilities to accomplish its necessary road-improvement program, and we perceive no sound reason why the state’s police power should not be exercised in conjunction with the government’s right of eminent domain. Furthermore, the government, by virtue of its power to regulate the use of government lands, could undoubtedly require relocation of the telephone line over its lands. In Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156, 157, 40 S.Ct. 106, 108, 64 L.Ed. 194, the court said: “That the United States lacks the police power, and that this was reserved to the states by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose. * * * if fhg nature and conditions of a restriction upon the use or disposition of property is such that a state could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation.” Since Congress has the power to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” (Constitution, art. 4, § 3, cl. 2), this power of the United States, analogous to the police power of a state, is clearly applicable where the lands of the United States are concerned. Federal Power Commission v. Idaho Power Co., 344 U. S. 17, 21, 73 S.Ct. 85, 97 L.Ed. 15; McKelvey v. United States, 260 U.S. 353, 359, 43 S.Ct. 132, 67 L.Ed. 301; Utah Power & Light Co. v. United States, 243 U.S. 389," }, { "docid": "22741322", "title": "", "text": "subject to applicable constitutional limitations (Ex parte Milligan, 4 Wall. 2, 121-127; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Assn., 171 U. S. 505, 571; McCray v. United States, 195 U. S. 27, 61; United States v. Cress, 243 U. S. 316, 326); but the Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power. In re Kemmler, 136 U. S. 436, 448; Carroll v. Greenwich Ins. Co., 199 U. S. 401, 410.” Cf. Brooks v. United States, 267 U. S. 432, 436, 437; Nebbia v. New York, 291 U. S. 502, 524, The dates and titles are given in the brief for the Government in No. 636, at pp. 15-18. See also the Report of tbe Fifteenth Annual Meeting of the National Coal Association, October 26-27, 1934, and the statement of the resolutions adopted at the Sixteenth Annual Meeting as reported at hearings preliminary to the passage of this Act. Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 74th Congress, 1st Sesssion, on H. R. 8479, pp. 20, 152. There is significance in the many bills proposed to the Congress after painstaking reports during successive national administrations, with a view to the regulation of the coal industry by Congressisonal action. S. 2557, October 4, 1921, 67th Cong., 1st Sess.; S. 3147, February 13, 1922, 67th Cong., 2nd Sess.; H. R. 9222, February 11, 1926, 69th Cong., 1st Sess.; H. R. 11898, May 4, 1926 (S. 4177), 69th Cong., 1st Sess.; S. 2935, January 7, 1932 (H. R. 7536), 72nd Cong., 1st Sess.; also same session H. R. 12916 and 9924. “Price control, like any other form of discrimination, is unconstitutional only if arbitrary, discriminatory or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.” Nebbia v. New York, supra, at p. 538. At a hearing before a Subcommittee of the .Committee on Ways and. Means, House of Representatives, 74th Congress, First" }, { "docid": "22121962", "title": "", "text": "to effect a purpose clearly within its power, has adopted a device consonant with recognized principles and therefore within the limits of due process. It has long been settled that statutory forfeitures of property entrusted by the innocent owner or lienor to another who uses it in violation of the revenue laws of the United States is not a violation of the due process clause of the Fifth Amendment. Goldsmith-Grant Co. v. United States, 254 U. S. 505; Dobbins Distillery v. United States, 96 U. S. 395; United States v. Stowell, 133 U. S. 1; United States v. Mincey, 254 Fed. 287; Logan v. United States, 260 Fed. 746; United States v. One Saxon Automobile, 257 Fed. 251; United States v. 246½ Pounds of Tobacco, 103 Fed. 791; United States v. 220 Patented Machines, 99 Fed. 559; but cf. National Bond & Investment Co. v. Gibson, 6 Fed. (2d) 288. A like principle has been applied to the unlawful introduction of liquor into Indian territory in violation of § 2140, R. S. United States v. One Buick Roadster Automobile, 244 Fed. 961; United States v. One Seven Passenger Paige Car, 259 Fed. 641. We do not perceive any valid distinction between the application of the Fourteenth Amendment to the exercise of the police power of a state in this particular field and the application of the Fifth Amendment to the similar exercise of the taxing power by the federal government, or any reason for holding that the one is not as plenary as the other. See Hibben v. Smith, 191 U. S. 310, 325; Carroll v. Greenwich Insurance Co., 199 U. S. 401, 410, and see Kidd v. Pearson, supra, at p. 26, upholding the police power of a state to destroy property used in the unlawful manufacture of liquor, on the authority of Coe v. Errol, 116 U. S. 517, a tax case. 1 The mere fact that the statute now in question has a -broader scope than § 26 of the National Prohibition Act, authorizing confiscation of vehicles used in unlawful transportation of liquor, does not affect its" }, { "docid": "22695016", "title": "", "text": "the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578. Under that provision no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the. sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623; In re Kemmler, 136 U. S. 436; Crowley v. Christensen, 137 U. S. 86; In re Converse, 137 U. S. 624. The State, therefore, has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to ‘let one’s property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free contract. Therefore, when the State, by its legislature, in the assumed exercise of its police powers, has passed an act" } ]

[ { "docid": "17046375", "title": "", "text": "as Gray did and received less severe punishment. Neither is there any evidence that Gray was disciplined contrary to the established rules of Toshiba, and, indeed, the evidence demonstrates that Gray and other employees whom she consulted about her plan to hit Lynch were well aware that instigating a fight was grounds for termination. In the absence of evidence that the proffered reason had no basis in fact or that it was not sufficient to warrant dismissal, there is no evidence from which the jury could base a suspicion of mendacity on the part of Toshiba, and no evidence from which the jury could infer intentional discrimination. That leaves only the second Manzer option — that the employer’s articulated reason did not actually motivate the discharge. As to that type of rebuttal, we held, [i]f the bare bones elements of plaintiffs prima facie case were sufficient to make this showing, ... the entire ‘burden shifting’ analysis of McDonnell Douglas and its successors would be illusory ... Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence, but must, instead, introduce additional evidence of [gender] discrimination. Id. Our holding is bolstered by the Supreme Court’s conclusion in Reeves that “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’’ Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Gray has not provided any evidence to support a claim that Toshiba’s proffered reason for her discharge was not the company’s actual motivation for discharging her. The evidence presented in this case did not even support a prima facie showing of gender discrimination, and Gray points to nothing beyond that evidence to support a claim that Toshiba really discharged her because of her gender and not because she deliberately provoked a fight with another employee. Although we are always hesitant to overturn a jury verdict, we hold that the district court erred as a matter of law in denying" } ]

[ { "docid": "22737798", "title": "", "text": "omitted). The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiffs discharge never happened, i.e., that they are \"factually false.\" Baxter Healthcare, 13 F.3d at 1123-24. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibifity of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed \"a suspicion of mendacity.\" Hicks, - U.S. at -, 113 S.Ct. at 2749. As Hicks teaches, such a showing permits, but does not require, the factflnder to infer illegal discrimination from the plaintiff's prima facie case. The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. The plaintiffs attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an ifiegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it \"more likely than not\" that the employer's explanation is a pretext, or coverup. If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing, however, the entire \"burden shifting\" analysis of McDonnell Douglas and its successors would be illusory. No case could ever be culled out after the prima facie stage and every case would have to be determined by a jury. We do not believe that this was the intent of Congress or the outcome envisioned by the Supreme Court in its long line of cases implementing employment discrimination legislation. Accordingly, we hold that, in order" }, { "docid": "22848472", "title": "", "text": "for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed “a suspicion of mendacity.” The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal. The plaintiffs attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it “more likely than not” that the employer’s explanation is a pretext, or a coverup. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of age discrimination. Manzer, 29 F.3d at 1084. Pennington v. Western Atlas, Inc., 202 F.3d 902, 909-10 (6th Cir.2000). In the case sub judice, the district court found (and, in fact, WRCS conceded) that Hedrick had established a prima facie case of age discrimination. WRCS, then, offered a legitimate, non-discriminatory reason for not hiring Hedrick for one of the vacant case manager positions and/or quality assurance positions, i.e., WRCS asserted that it chose better qualified candidates than Hedrick to fill the vacant positions. Finally, the district court found that Hedrick had failed to show that WRCS’s proffered reason for not hiring Hedrick was pretextual. 1. Arguments Hedrick argues that the district court’s finding regarding pretext was erroneous. Specifically, Hedrick contends that the district court improperly applied the United States Supreme Court’s holding in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and that the district court disregarded the evidence of pretext which she tendered, choosing instead to blindly accept WRCS’s subjective determination that the successful applicants were better qualified than she was without conducting any analysis of that claim." }, { "docid": "5307996", "title": "", "text": "happened, i.e., that they are factually false. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer’s proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed “a suspicion of mendacity.” The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal. The plaintiffs attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it “more likely than not” that the employer’s explanation is a pretext, or a coverup. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of age discrimination. Manzer, 29 F.3d at 1084. Here, the district court found as follows regarding Defendant’s proffered reasons for' discharging Plaintiffs, and Plaintiffs’ evidence to rebut those reasons: 8. The defendant’s stated reason for terminating Pennington was that he had the lowest evaluations in his department. 9. Individuals from Western Atlas’ Human Resources Department provided Pennington’s supervisor with the names of the individuals to be laid off. 10. Pennington’s former supervisors had no criticism of Pennington’s work. Indeed, Malone, Pennington’s supervisor from 1982 through 1992, rated Pennington’s work satisfactory to above satisfactory and stated that his work was excellent. 11. The defendant provided the following reasons for selecting Cunningham for termination: (1) he did not meet schedules; (2)" }, { "docid": "22899848", "title": "", "text": "insufficient to explain the employer’s action. Id. Regardless of which rebuttal method is employed, the plaintiff retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003) (alteration in original). “The jury may not reject an employer’s explanation ... unless there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083 (holding that the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer’s explanation) (emphasis in original). Haag-Streit argues that it is entitled to judgment as a matter of law because Imwalle failed to establish a prima facie case. Both the Supreme Court and this court, however, have held that a party framing its argument on appeal in prima facie terms, after a jury trial on the merits, has “unnecessarily evaded the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (italics in original); EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (“Following a trial on the merits, the district court, therefore, cannot return to a consideration of whether plaintiff has proven its prima facie case. This is a preliminary matter which cannot be revisited at a later time.”) Our duty at this stage of the proceedings is therefore to determine the ultimate question: whether Imwalle produced sufficient evidence to support the jury’s finding that Haag-Streit terminated his employment in retaliation for his complaints of age and national-origin discrimination. See Avery Dennison, 104 F.3d at 862 (“The proper inquiry following the presentation of all evidence in a Title VII case is whether the plaintiff has proven its case by a preponderance under the McDonnell Douglas-Burdine-St. Mary’s burden shifting framework”). Accordingly, we “cannot simply hold that [Imwalle’s] failure to provide evidence of an essential element of [his] pri-ma facie ease is dispositive here.” See Tisdale v. Fed. Express Corp., 415 F.3d 516, 529 (6th Cir.2005) (explaining" }, { "docid": "22899847", "title": "", "text": "negative employment action, permits a finding of retaliation by the fact-finder. See Abbott, 348 F.3d at 542 (citing St. Mary’s, 509 U.S. at 511, 113 S.Ct. 2742); Kline v. Tenn. Valley Auth., 128 F.3d 337, 347 (6th Cir.1997) (discussing the “import of the [St. Mary’s Honor Ctr. v.] Hicks holding in this circuit”). The Supreme Court in Reeves held that “[o]nce the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.” Reeves, 530 U.S. at 147-48, 120 S.Ct. 2097. In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.1994), this court identified three ways in which a plaintiff may rebut a defendant’s legitimate, nondiscriminatory reason and demonstrate pretext. The plaintiff may show that (1) the employer’s stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer’s action. Id. Regardless of which rebuttal method is employed, the plaintiff retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003) (alteration in original). “The jury may not reject an employer’s explanation ... unless there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083 (holding that the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer’s explanation) (emphasis in original). Haag-Streit argues that it is entitled to judgment as a matter of law because Imwalle failed to establish a prima facie case. Both the Supreme Court and this court, however, have held that a party framing its argument on appeal in prima facie terms, after a jury trial on the merits, has “unnecessarily evaded the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711," }, { "docid": "23642284", "title": "", "text": "stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer’s action.” Imwalle, 515 F.3d at 545 (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994)). Plaintiff relies on the second type of rebuttal evidence and has the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [Defendant’s] explanation and infer that [Defendant] intentionally discriminated against him.” Id. (quoting Johnson v. Kroger, 319 F.3d 858, 866 (6th Cir.2003)) (internal quotation marks omitted). Defendant argues that it is entitled to judgment as a matter of law because Plaintiff failed to establish a prima facie case, specifically a causal connection between Spengler’s discharge and the protected activity. However, this Court has previously noted that in an appeal where there has already been a jury trial on the merits, our duty is to determine whether Plaintiff produced sufficient evidence to support the jury’s finding that Defendant terminated his employment in retaliation for his complaints of age discrimination. Accordingly, we “cannot simply hold that [Plaintiffs] failure to provide evidence of an essential element of [his] prima facie case is dispositive.” See Tisdale, 415 F.3d at 529. Moreover, as discussed below, we conclude that Plaintiff produced evidence of a causal connection. Defendant contends that Plaintiffs discharge was undeniably caused by his failure to attain RFT status, as evidenced, argues Defendant, by the uniform enforcement of and testimony about the company’s 12-month rule. To establish a causal connection, Plaintiff must “proffer evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir.2009) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997)) (internal quotation marks omitted). Closeness in time is one indicator of a causal connection, see Little v. BP Exploration & Oil Co., 265 F.3d 357, 364-65 (6th Cir.2001), but temporal proximity, standing alone, is not enough to establish a" }, { "docid": "22312698", "title": "", "text": "appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiffs prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports the employer’s case and that properly may be considered on a motion for judgment as a matter of law. Id. at 148-49, 120 S.Ct. 2097. We recently revisited the question of what is a discrimination plaintiffs evidentiary burden at the pretext stage in light of Reeves in Gray v. Toshiba Am. Consumer Prod., 263 F.3d 595 (6th Cir.2001), and concluded in that case that Reeves bolstered the rebuttal framework we established in Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1081 (6th Cir.1994). In Gray we stated: This circuit ... has held that “[t]he jury may not reject an employer’s explanation [of its action] unless there is sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083 (emphasis in original). To make a submissible case on the credibility of his employer’s explanation, the plaintiff is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge. Id. at 1084 (internal quotations and emphasis omitted). The first type of rebuttal, we said, consists of evidence that the reasons given by the employer simply did not happen. Id. The third type, “ordinarily consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” Id. The first and third types of rebuttals, we held, “are direct attacks on the credibility of the employer’s proffered motivation for firing the plaintiff, and if shown, provide an evidentiary basis for what the Supreme Court has termed a ‘suspicion of mendacity.’ ” Id. It is thus clear, in light of Reeves, and St. Mary’s Honor Center, as well-as our" }, { "docid": "22312699", "title": "", "text": "explanation, the plaintiff is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge. Id. at 1084 (internal quotations and emphasis omitted). The first type of rebuttal, we said, consists of evidence that the reasons given by the employer simply did not happen. Id. The third type, “ordinarily consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” Id. The first and third types of rebuttals, we held, “are direct attacks on the credibility of the employer’s proffered motivation for firing the plaintiff, and if shown, provide an evidentiary basis for what the Supreme Court has termed a ‘suspicion of mendacity.’ ” Id. It is thus clear, in light of Reeves, and St. Mary’s Honor Center, as well-as our opinion in Man-zer, that whether the plaintiff has in fact presented evidence supporting each element of her prima facie case is material to the determination that the employer’s articulated reason for the discharge is not credible. Here, Toshiba articulated a non-discriminatory reason for firing Gray.... Gray, however, has produced no evidence casting doubt on the credibility of this articulated reason. Hence, there is no evidence that Toshiba’s articulated reason has no basis in fact. Second, there is no evidence in the record that [the articulated reason] is not sufficient to warrant discharge under Toshiba’s rules.... That leaves only the second Manzer option — that the employer’s articulated reason did not actually motivate the discharge. As to that type of rebuttal, we held, [i]f the bare bones elements of plaintiffs prima facie case were sufficient to make this showing, ... the entire ‘burden shifting’ analysis of McDonnell Douglas and its successors would be illusory ... Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his" }, { "docid": "22253132", "title": "", "text": "conclude that Johnson has failed to provide any direct evidence of discrimination. 2. Whether Kroger’s explanation was a pretext to hide racial discrimination Because Johnson has failed to present any direct evidence of discrimination, the burden-shifting approach first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), applies to the present case. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir.2000). Under the McDonnell Douglas framework, the plaintiff faces the initial burden of presenting a prima facie case of unlawful discrimination. Id. The establishment of a prima facie case creates a rebuttable presumption of discrimination and requires the defendant to “articulate some legitimate, nondiscriminatory reason” for taking the challenged action. Id. at 573 (internal quotation marks omitted). If the defendant is able to satisfy this burden, the plaintiff must then “prove that the proffered reason was actually a pretext to hide unlawful discrimination.” Id. Kroger concedes that Johnson established a prima facie case of discriminatory discharge. Likewise, Johnson concedes that Kroger articulated a legitimate, nondiscriminatory reason for terminating his employment; namely, the inability to satisfactorily perform his duties as a coman-ager. The disposition of this case thus hinges upon Johnson’s contention that the justification proffered by Kroger was a pretext designed to mask racial discrimination. A plaintiff can refute the legitimate, nondiscriminatory reason articulated by an employer to justify an adverse employment action “by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000). Regardless of which option is used, the plaintiff retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir.2001) (alteration in original) (internal quotation marks and citation omitted)." }, { "docid": "22899850", "title": "", "text": "the proper analysis where the defendant challenges the plaintiffs prima facie case of retaliation following a jury verdict). In reaching our determination on the ultimate question of retaliation, we may review “all of the evidence in the record,” including the evidence supporting Im-walle’s prima facie case. See Reeves, 530 U.S. at 150, 120 S.Ct. 2097. This is not to say, however, that a plaintiffs failure to present evidence sufficient to make out a prima facie case is irrelevant to our review of the ultimate question. Gray, 263 F.3d at 599 (addressing an alleged weakness in the plaintiffs prima fa-cie case following a jury trial). Although Imwalle clearly produced evidence to support a finding that he engaged in protected activity, that the exercise of his civil rights was known to Haag-Streit, and that Haag-Streit took an adverse employment action against him by removing him as President of Reliance and terminating his employment agreement, the fourth prong of his prima facie case (establishing a causal connection) presents a closer question and is relevant to whether Imwalle is ultimately able to prove pretext. 3. The ultimate question of retaliation Haag-Streit asserts that Inabnit and Ott terminated Imwalle for poor performance. Poor performance is a legitimate, nondiscriminatory reason for terminating a person’s employment and, by articulating such a reason, Haag-Streit met its initial burden under the McDonnell Douglas/Burdine framework. The final burden therefore shifted to Imwalle to prove that Haag-Streit’s stated reason for his termination was in fact a pretext designed to hide retaliation. See Avery Dennison, 104 F.3d at 862. Imwalle takes the second Manzer approach by arguing that “[Haag-Streit’s] claims of poor performance were simply not credible given the substantial evidence that proved otherwise.” See Manzer, 29 F.3d at 1084. A plaintiff using the second approach must show that the proffered reason “did not actually motivate the defendant’s challenged conduct.” Johnson, 319 F.3d at 866 (internal quotation marks omitted). In this type of showing, the plaintiff attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered" }, { "docid": "22312701", "title": "", "text": "prima facie evidence, but must, instead, introduce additional evidence of [prohibited] discrimination. Id. Our holding is bolstered by the Supreme Court’s conclusion in Reeves that “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097, 147 L.Ed.2d 105. 263 F.3d at 600-02. Turning to the District Court’s summary judgment ruling in this case, to be sure, the language and structure of the court’s opinion lend some credence to Plaintiffs contention that the District Court misconstrued his burden at the pretext stage of the McDonnell Douglas paradigm. The court initially set forth the Plaintiffs burden at this stage as follows: Once the defendant articulates a legitimate non-discriminatory basis for its action, the ultimate burden of proof rests with the plaintiff to prove by a preponderance of the evidence that the articulated business reason was a pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Cooley v. Carmike Cinemas, [25 F.3d 1325,] 1329 [6th Cir.1994], That is to say, the plaintiff “must produce sufficient evidence from which the jury may reasonably reject the employer’s explanation.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir.1994). The plaintiff can show that defendant’s reasons were pretextual by showing that they were not really factors motivating the discharge, or if they were factors, by showing that they were jointly insufficient to motivate the discharge. Ridenour v. Lawson Co., 791 F.2d 52, 56 (6th Cir.1986) (quoting La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1414-1415 (7th Cir.1984)); Manzer, supra, 29 F.3d at 1084. As to the evidence introduced to show pretext, the trier of fact “may rely on the evidence ... to establish the prima facie case and any inferences properly drawn therefrom.” Id. [J.A. pp. 28-29.] However, in analyzing the evidence presented by Plaintiff, the court subsequently stated: [P]laintiff has not “produced sufficient evidence from which the jury may reasonably reject" }, { "docid": "22253133", "title": "", "text": "Id. Kroger concedes that Johnson established a prima facie case of discriminatory discharge. Likewise, Johnson concedes that Kroger articulated a legitimate, nondiscriminatory reason for terminating his employment; namely, the inability to satisfactorily perform his duties as a coman-ager. The disposition of this case thus hinges upon Johnson’s contention that the justification proffered by Kroger was a pretext designed to mask racial discrimination. A plaintiff can refute the legitimate, nondiscriminatory reason articulated by an employer to justify an adverse employment action “by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000). Regardless of which option is used, the plaintiff retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th Cir.2001) (alteration in original) (internal quotation marks and citation omitted). Johnson does not dispute that Noyes and other Kroger employees working under her supervision documented instances of unsatisfactory conditions in the Wheel-ersburg store, even after he had been told about the problems. Thus, the first potential method of challenging an employer’s explanation — contesting its factual basis— is not available to Johnson. In contrast, both the second and the third methods of establishing that Kroger’s explanation was a pretext intended to hide illegal discrimination are relevant in the present case. A plaintiff using the second option “admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal,” but “attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994) (emphasis in original). The third possibility generally “consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially" }, { "docid": "21040634", "title": "", "text": "were in a position of having offered no legitimate reason for their actions ... [and] were in no better position than if they had remained silent, offering no rebuttal to an established inference that they had unlawfully discriminated against plaintiff on the basis of his race.” Id., 509 U.S. at 509, 113 S.Ct. at 2748, (quoting from Circuit Court opinion at 970 F.2d at 492). In reversing the Circuit Court’s reversal of the district court and its entry of judgment in the plaintiffs favor, the Supreme Court emphasized that under the McDonnell Douglas scheme, establishment of the prima face case in effect creates a presumption that the émployer unlawfully discriminated against the employee and thereby places upon the defendant the burden of producing an explanation to rebut the prima facie case. It does not shift the ultimate burden of proof to the defendant. 509 U.S. at 506-07, 113 S.Ct. at 2747. In short, once the defendant has met its burden of producing a non-discriminatory explanation for the employment action, the presumption created by the prima facie ease dissolves and the trier of fact must proceed to decide the ultimate issue in the case: whether plaintiff has proved that defendant intentionally discriminated against him on the basis of his race. In making this determination, the factfinder may disbelieve the reasons put forth by defendant. While this disbelief may permit an award to be made in .plaintiffs favor, it does not compel it. See: Id., 509 U.S. at 511, 113 S.Ct. at 2749. [“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may together with the elements of the prima facie case, suffice to show intentional discrimination.”] The Hicks decision did not entirely end the inquiry however, as both the courts and litigants continued to struggle with the question of what nature and quantum of evidence was necessary to permit a jury to find that an employer engaged in unlawful employment discrimination and for a plaintiff to surmount a motion for judgment as a matter of law. In the intervening" }, { "docid": "22848471", "title": "", "text": "ADEA, this Court explained what evidence a plaintiff must adduce in order to show that an employer’s alleged legitimate reason for its adverse action against the plaintiff was a mere pretext: To make a submissible case on the credibility of his employer’s explanation, the plaintiff is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge. The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiffs discharge never happened, i.e., that they are factually false. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer’s proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed “a suspicion of mendacity.” The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer’s proffered explanation and further admits that such conduct could motivate dismissal. The plaintiffs attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer’s explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it “more likely than not” that the employer’s explanation is a pretext, or a coverup. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence but must, instead, introduce additional evidence of age discrimination. Manzer, 29 F.3d at 1084. Pennington v. Western Atlas," }, { "docid": "22312700", "title": "", "text": "opinion in Man-zer, that whether the plaintiff has in fact presented evidence supporting each element of her prima facie case is material to the determination that the employer’s articulated reason for the discharge is not credible. Here, Toshiba articulated a non-discriminatory reason for firing Gray.... Gray, however, has produced no evidence casting doubt on the credibility of this articulated reason. Hence, there is no evidence that Toshiba’s articulated reason has no basis in fact. Second, there is no evidence in the record that [the articulated reason] is not sufficient to warrant discharge under Toshiba’s rules.... That leaves only the second Manzer option — that the employer’s articulated reason did not actually motivate the discharge. As to that type of rebuttal, we held, [i]f the bare bones elements of plaintiffs prima facie case were sufficient to make this showing, ... the entire ‘burden shifting’ analysis of McDonnell Douglas and its successors would be illusory ... Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima facie evidence, but must, instead, introduce additional evidence of [prohibited] discrimination. Id. Our holding is bolstered by the Supreme Court’s conclusion in Reeves that “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097, 147 L.Ed.2d 105. 263 F.3d at 600-02. Turning to the District Court’s summary judgment ruling in this case, to be sure, the language and structure of the court’s opinion lend some credence to Plaintiffs contention that the District Court misconstrued his burden at the pretext stage of the McDonnell Douglas paradigm. The court initially set forth the Plaintiffs burden at this stage as follows: Once the defendant articulates a legitimate non-discriminatory basis for its action, the ultimate burden of proof rests with the plaintiff to prove by a preponderance of the evidence that the articulated business reason was a pretext for discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S." }, { "docid": "22737797", "title": "", "text": "cliscrimi-nated against the plaintiff remains at all times with the plaintiff'). Accordingly, once the employer has come forward with a nondiscriminatory reason for firing the plaintiff, we hold that the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation. See Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1109 (8th Cir.1994) (\"if (1) the elements of a prima facie case are present, and (2) there exists sufficient evidence for a reasonable jury to reject the defendant's proffered reasons for its actions, then the evidence is sufficient to allow the jury to determine whether intentional discrimination has occurred\"). To make a submissible case on the credibility of his employer's explanation, the plaintiff is \"required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.\" McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993) (emphasis added and quotation marks omitted). The first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiffs discharge never happened, i.e., that they are \"factually false.\" Baxter Healthcare, 13 F.3d at 1123-24. The third showing is also easily recognizable and, ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibifity of the employer's proffered motivation for firing plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed \"a suspicion of mendacity.\" Hicks, - U.S. at -, 113 S.Ct. at 2749. As Hicks teaches, such a showing permits, but does not require, the factflnder to infer illegal discrimination from the plaintiff's prima facie case. The second showing, however, is of an entirely different ilk. There, the plaintiff admits the factual basis underlying the employer's proffered explanation and further admits that" }, { "docid": "10087017", "title": "", "text": "introducing specific facts, Pittman points to his own vague allegations and subjective beliefs and claims this is probative evidence of discrimination. It is not, and Pittman has, quite simply, failed to satisfy an essential element of the McDonnell Douglas prima facie case, c. Legitimate, Non-Discriminatory Reason for Adverse Action Assuming, arguendo, that Pittman could establish a prima facie case of race discrimination utilizing the circumstantial evidence approach, he has not shown how Defendants’ articulated reasons for his suspension were a pretext for intentional race discrimination. The Sixth Circuit has set forth three ways for a plaintiff to meet his/her burden of showing pretext and thereby create a legitimate question for the jury in the face of an employer’s articulated nondiscriminatory reason for its actions. First, the plaintiff can show the proffered reason is factually false. Second, the plaintiff can show the proffered reason was not sufficient by itself to justify the adverse action taken against the plaintiff. Third, the plaintiff, while not disputing the truth of the proffered reason, can present evidence to show the proffered reasons did not actually motivate the adverse action taken. Tomblin, 20 F.Supp.2d at 1148 (citing Manzer v. Diamond Shamrock Chemicals Co. (6th Cir.1994), 29 F.3d 1078, 1084). Under the third scenario, the plaintiff must present some proof, beyond a prima facie case, of discriminatory animus. Tomblin, 20 F.Supp.2d at 1149 (citing Manzer, 29 F.3d at 1084). Each of these means presents a sufficient evidentiary basis to create a “suspicion of mendacity” for the fact finder to infer an illegal motive and reject the employer’s proffered explanation. Id. (citing Wheeler v. McKinley Enters. (6th Cir.1991), 937 F.2d 1158, 1162). Defendants have articulated the reasons for Pittman’s suspension as being related to his failure to follow CVCC rules and policies, and two instances of insubordination. They have produced evidence in the form of affidavits and deposition testimony in support of their articulated reasons for suspending Pittman. Indeed, Pittman conceded in his deposition that: (1) he allowed his students to leave early on days he had to cover the parking lot; (2) he knew this was not" }, { "docid": "22737799", "title": "", "text": "such conduct could motivate dismissal. The plaintiffs attack on the credibility of the proffered explanation is, instead, an indirect one. In such cases, the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an ifiegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it \"more likely than not\" that the employer's explanation is a pretext, or coverup. If the bare bones elements of a plaintiff's prima facie case were sufficient to make this showing, however, the entire \"burden shifting\" analysis of McDonnell Douglas and its successors would be illusory. No case could ever be culled out after the prima facie stage and every case would have to be determined by a jury. We do not believe that this was the intent of Congress or the outcome envisioned by the Supreme Court in its long line of cases implementing employment discrimination legislation. Accordingly, we hold that, in order to make this type of rebuttal showing, the plaintiff may not rely simply upon his prima fade evidence but must, instead, introduce additional evidence of age discrimination. C. In the present case, Man~er contends that the same evidence which created a jury question on his prima facie element of \"qualification\" was also sufficient to permit a reasonable juror to reject Diamond Shamrock's proffered explanations as \"phony\". The district court held, and Manzer does not dispute, that he presented no evidence that his employer's explanations were \"factually false.\" Nor did Manzer introduce any evidence that other, but younger, employees were not fired even though they were just as \"obnoxious and unreliable\" as he. Therefore, the sufficiency of Manzer's rebuttal must be evaluated in terms of the second showing discussed above, i.e. that the strength of his circumstantial evidence of age discrimination overwhelms, or at least would permit a reasonable juror to conclude that it overwhelms, Diamond Shamrock's non-discriminatory reasons. The central theme of Manzer's argument is that, because he continued to receive good performance evaluations and" }, { "docid": "23642283", "title": "", "text": "(emphasis omitted). In Reeves, the Supreme Court stated that [p]roof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See [St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,] ... 517, 113 S.Ct. 2742, 125 L.Ed.2d 407 [(1993)] ... (“[Proving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”) ... [O]nce the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision.... Thus, a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. 530 U.S. at 147-48, 120 S.Ct. 2097 (citation omitted). A plaintiff can rebut an employer’s legitimate, nondiscriminatory reason and show pretext by demonstrating that: “(1) the employer’s stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating the employee was not the actual reason for the termination, or (3) the reason offered was insufficient to explain the employer’s action.” Imwalle, 515 F.3d at 545 (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994)). Plaintiff relies on the second type of rebuttal evidence and has the ultimate burden of producing “sufficient evidence from which the jury could reasonably reject [Defendant’s] explanation and infer that [Defendant] intentionally discriminated against him.” Id. (quoting Johnson v. Kroger, 319 F.3d 858, 866 (6th Cir.2003)) (internal quotation marks omitted). Defendant argues that it is entitled to judgment as a matter of law because Plaintiff failed to establish a prima facie case, specifically a causal connection between Spengler’s discharge and the protected activity. However, this Court has previously noted that in an appeal where there has already been a jury trial on the merits, our duty is to determine whether Plaintiff produced sufficient evidence to support the jury’s" }, { "docid": "23344221", "title": "", "text": "F.2d 104, at *5 (6th Cir.1989) (Table) (concluding that defendant’s assertion that its mistake in failing to hire plaintiff constituted a legitimate non-discriminatory reason). Given that Fletcher and Green were promoted based on faulty performance ratings, not known until discovery, and that Upshaw failed to rebut this testimony, Ford successfully met its burden of establishing a legitimate non-discriminatory reason for not granting Upshaw an in-series promotion between 2003 and 2005. 3. Pretext A plaintiff may establish that an employer’s stated reason for its employment action was pretextual by showing that the reason (1) had no basis in fact, (2) did not actually motivate the challenged conduct, or (3) is insufficient to explain the challenged conduct. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994). The plaintiff must produce “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003) (alteration in original). “The jury may not reject an employer’s explanation ... unless there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083. If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous. See Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th Cir.2009) (quoting Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001) (noting that “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect”)). Upshaw argues that Ford’s error in its EEOC response and its changing defense for Fletcher’s and Green’s promotions are evidence that its claim of “mistake” is pretext for discrimination. She asserts that the fact that Ford changed its original defense before the EEOC — that Fletcher and" } ]

[ { "docid": "3593425", "title": "", "text": "McWILLIAMS, Circuit Judge. Domingo Salinas-Calderón, the defendant, was charged in six counts with violations of 8 U.S.C. § 1324(a)(2), which prohibits the knowing transportation of an alien who is unlawfully within the United States. Prior to trial, Salinas moved to suppress all statements made by him and by six passengers in the vehicle which he was driving when he was stopped by a Kansas Highway Patrol Trooper near Howell, Kansas. After an evidentiary hearing, the district court granted the motion to suppress. The government filed a timely notice of appeal pursuant to 18 U.S.C. § 3731 and asks that the district court’s suppression order be reversed. The background facts are straight forward and not in dispute. Lt. Alvie Fur-beck, a Kansas Highway Patrol Trooper, observed a blue Ford pickup truck being driven erratically on U.S. Highway 50 near Howell, Kansas, a small rural town near Dodge City, Kansas. Believing that the driver of the vehicle might be under the influence of alcohol, or perhaps just drowsy, Lt. Furbeck effected a stop of the vehicle. As Furbeck approached the truck he observed that there were persons seated in the back of the pickup under an aluminum camper shell which covered the bed of the pickup. Salinas was the driver of the vehicle. Lt. Furbeck asked Salinas for his driver’s license, but he did not respond. Upon asking a second time, it became evident that Salinas did not speak English. The woman seated next to Salinas in the cab of the pickup identified herself as Salinas’ wife and said that though she spoke English, her husband did not. She stated that she had a driver’s license, and that actually she had been driving most of the time. She added that her husband, who did not have a driver’s license, had commenced driving only when she wanted to take care of their “fussy” baby. In response to Lt. Furbeck’s question, Mrs. Salinas also said that her husband was from Mexico, and that they were on their way to Florida from Manza-nola, Colorado. The officer then asked Mrs. Salinas if her husband had a" } ]

[ { "docid": "3593436", "title": "", "text": "Cir.1973). Additionally, we note that the record is unclear as to the extent to which Mrs. Salinas acted as an interpreter or volunteered the information about the passengers. Regardless of this ambiguity, it is clear the inquiry was' limited to their identification and place of origin. The routineness of this inquiry demonstrates that the officer was still in a stage of investigation. The male passengers were not subjected to custodial interrogation which triggers the Miranda requirement. Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966); Allen v. United States, 390 F.2d 476 (D.C.Cir.1968). See also United States v. Chadwick, 415 F.2d 167, 173 (10th Cir.1969); Sablowski v. United States, 403 F.2d 347, 349 (10th Cir.1968) (Miranda warnings are not required for on-the-scene questioning concerning state car registration and driver’s license). The statements which Salinas sought to suppress were those made by himself and his male passengers at the Sheriff’s Office at Dodge City to Bennett, the immigration officer. The evidence is undisputed that Bennett gave each of these persons a Miranda warning in Spanish before they were interrogated. Thus, we conclude that there was no violation of Salinas’ fifth amendment rights. Judgment reversed and cause remanded with directions that the order granting Salinas’ motion to suppress be vacated. . A green card is the colloquial term for an alien registration receipt card. See generally 8 C.F.R. § 211.1(b)(1). . Salinas was also given a traffic citation for driving without a driver’s license. . Because the state trooper acted lawfully in initially stopping the car based on his suspicion the driver was intoxicated, and not because of the driver’s apparent Mexican descent, we distinguish the instant case from the unlawful stop made in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). We further find that the brief detention and investigatory questioning of the occupants was reasonable and lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellee argues that the state trooper did not have the authority to detain the passengers while he" }, { "docid": "23464487", "title": "", "text": "involved a number of law enforcement agencies in and around the Ogden, Utah, area. As part of the investigation, an undercover officer, Weber County Sheriffs Deputy Douglas Coleman, began negotiating the purchase of a large quantity of marijuana from Salinas. Additionally, pursuant to Utah Code Ann. § 77-23a-10 (1990), the strike force obtained authorization for a wiretap on the telephone of the home where Salinas was living at the time. As the investigation progressed, the focus shifted away from marijuana and toward Salinas’ activities involving cocaine. Information gleaned pursuant to the wiretap revealed that Salinas had a source for cocaine in Ogden, known as “Bird” or “Bert” or “Burt.” On February 24, 1992, Salinas called a pager number and was called shortly thereafter by a male who was identified at trial as “Bird.” Bird reported to Salinas that he was calling from Layton, Utah, that he was on his way, and that he had “it.” R.Supp. Vol. X, Ex. 4. Salinas shortly thereafter paged Deputy Coleman, indicating that his source would be there soon, and the two arranged for the drug transaction to take place at a convenience store in Ogden. Surveillance officers observed an individual, later identified as Mr. Gomez, approach Salinas’s home, speak with Salinas as the two leaned over the bed of a pickup truck, and depart shortly thereafter. An officer conducting surveillance at the time testified that it appeared to be a delivery of cocaine. R.Vol. Ill at 82. Salinas then made a series of telephone calls to the undercover agent, Deputy Coleman, and drove to the prearranged location for the delivery. When Salinas verified that Deputy Coleman was at the prearranged location, he returned to his house, reached into the back of the pickup at the point where he previously had been speaking with Mr. Gomez, and retrieved something. R.Vol. Ill at 39. Salinas returned to the delivery location with a kilogram of cocaine at which point he was arrested. Approximately ten minutes later, Mr. Gomez again drove past the Salinas residence at which point officers gave pursuit and arrested him. Mr. Gomez was charged" }, { "docid": "22279238", "title": "", "text": "DENNIS, Circuit Judge: This case is before us on appeal of defendant Mario Alfredo Salinas’s conviction for unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). For the reasons stated below, we AFFIRM Salinas’s conviction. I. Background and Proceedings Below At approximately 11:15 p.m. on April 9, 2008, defendant Mario Alfredo Salinas was driving a black, 1999 GMC Yukon. Officer Erwin Fulcher of the Carrollton, Texas, police department stopped the vehicle because it had a defective tail light. Officer Fulcher asked Salinas for his license and proof of insurance. Salinas gave the officer his driver’s license, but stated'that he did not have proof of insurance because he was in the process of purchasing the vehicle. Officer Fulcher eventually arrested Salinas for failure to provide proof of insurance and transported Salinas to the Carrollton police station. After Salinas was arrested, additional Carrollton police officers on the scene conducted an inventory search of the Yukon. During the search, officers found a brown paper bag, which contained $3,397 in cash, between the driver’s seat and the center console. Beneath the bag, officers found a loaded Ruger 9mm semiautomatic pistol. Officers also found a black pouch containing a loaded Rossi .357 Magnum revolver under the front passenger seat. The Yukon’s rear cargo area contained a gym bag with $168 and some vitamins inside it. At the police station, officers found $2,168 in cash in Salinas’s jacket pocket. Two days after his arrest, Salinas returned to the Carrollton police station and said that he wished to pick up his “money and other stuff.” The property room officer stated that all of the seized property was evidence and could not be released to Salinas. The officer also stated that, because Salinas was a convicted felon, the firearms could not be returned to him. Salinas responded, “I know that,” and he then left. Salinas ultimately was charged with one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At trial, Salinas’s defense was that he had borrowed" }, { "docid": "23464488", "title": "", "text": "the two arranged for the drug transaction to take place at a convenience store in Ogden. Surveillance officers observed an individual, later identified as Mr. Gomez, approach Salinas’s home, speak with Salinas as the two leaned over the bed of a pickup truck, and depart shortly thereafter. An officer conducting surveillance at the time testified that it appeared to be a delivery of cocaine. R.Vol. Ill at 82. Salinas then made a series of telephone calls to the undercover agent, Deputy Coleman, and drove to the prearranged location for the delivery. When Salinas verified that Deputy Coleman was at the prearranged location, he returned to his house, reached into the back of the pickup at the point where he previously had been speaking with Mr. Gomez, and retrieved something. R.Vol. Ill at 39. Salinas returned to the delivery location with a kilogram of cocaine at which point he was arrested. Approximately ten minutes later, Mr. Gomez again drove past the Salinas residence at which point officers gave pursuit and arrested him. Mr. Gomez was charged in a federal complaint on March 11,1992, and he was brought before a magistrate judge on March 19,1992. A federal information was filed on March 30, a federal indictment charging him with distribution of cocaine was returned on April 4, and he was arraigned on April 17, 1992. Following a number of continuances, Mr. Gomez was tried April 5-6,1993, and convicted. He moved for a new trial on the basis that the wiretap evidence came to light only “a few days before trial.” R.Vol. I, Docs. 56, 57. The government joined Mr. Gomez in a stipulation for a new trial. The stipulation specifically stated that “a new trial should be granted in order to allow the defense sufficient time to review the evidence and documentation regarding the wiretap.” R.Vol. I, Doc. 60. The case was retried November 22-24, 1993, and Mr. Gomez was again convicted. This appeal followed. DISCUSSION I. SPEEDY TRIAL Mr. Gomez first claims that he was denied his statutory and constitutional right to a speedy trial, in violation of the Speedy Trial" }, { "docid": "3593433", "title": "", "text": "the language barrier. From the woman who was seated beside Salinas in the cab of the pickup, Lt. Fur-beck learned that Salinas was from Mexico, that he had no driver’s license or green card, and that they were en route from Colorado to Florida. Further, Lt. Furbeck observed six adult males in the bed of the pickup under an aluminum camper shell. He was also unable to converse with any of these six passengers because of the language barrier. However, he learned from Mrs. Salinas that the six passengers were also from Mexico and that none had identification papers or green cards. Applying the objective probable cause test to these facts, it is our view Lt. Furbeck had probable cause to make a warrantless arrest for violation of the immigration laws at this point in time. Lt. Furbeck’s subsequent call to the local authorities of the Immigration and Naturalization Service does not defeat the existence of probable cause. Although we find that probable cause existed before Lt. Furbeck called the Immigration Service, we note that it is well established that law enforcement officers may pool their information in order to establish probable cause. United States v. Torres, 663 F.2d 1019, 1022 (10th Cir.1981), cert. denied, 456 U.S. 973, 102 S.Ct. 2237, 72 L.Ed.2d 847 (1982); Holt v. United States, 404 F.2d 914, 918-19 (10th Cir.1968), cert. denied, 393 U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969). In sum, we hold that Lt. Furbeck had probable cause to make a warrantless arrest and the fact that Lt. Furbeck himself did not know with certainty that there was a violation of the immigration laws is not controlling. In granting the motion to suppress, the district court relied upon Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway, the Supreme Court held the police violated the fourth amendment when they seized the petitioner, without probable cause to arrest, and took him to the police station for interrogation. The case is clearly distinguishable because in Dunaway the police lacked probable cause, and indeed the State conceded" }, { "docid": "3593435", "title": "", "text": "this point. In the instant case, we find probable cause was established. Appellee also argues the group should have been advised of their Miranda rights prior to questioning at the scene on the highway. As indicated, because of the language barrier, Lt. Furbeck did not acquire any information from Salinas. Hence, the question of whether he should have been given a Miranda warning at the scene of the stopping is only academic. With respect to the male occupants of the truck, Salinas does not have standing to object to any violation of their fifth amendment rights resulting from failure to give Miranda warnings at the highway scene. See, e.g., United States v. Lopez, 709 F.2d 742, 745 n. 3 (1st Cir.), cert. denied, — U.S. —, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983); United States v. Penn, 647 F.2d 876, 884 (9th Cir.1980); United States v. Fredericks, 586 F.2d 470, 479-81 (5th Cir.1978), cert. denied, 440 U.S. 962, 99 S.Ct. 1507, 59 L.Ed.2d 776 (1979). Cf. United States v. Skolek, 474 F.2d 582, 584-85 (10th Cir.1973). Additionally, we note that the record is unclear as to the extent to which Mrs. Salinas acted as an interpreter or volunteered the information about the passengers. Regardless of this ambiguity, it is clear the inquiry was' limited to their identification and place of origin. The routineness of this inquiry demonstrates that the officer was still in a stage of investigation. The male passengers were not subjected to custodial interrogation which triggers the Miranda requirement. Miranda v. Arizona, 384 U.S. 436, 477-78, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966); Allen v. United States, 390 F.2d 476 (D.C.Cir.1968). See also United States v. Chadwick, 415 F.2d 167, 173 (10th Cir.1969); Sablowski v. United States, 403 F.2d 347, 349 (10th Cir.1968) (Miranda warnings are not required for on-the-scene questioning concerning state car registration and driver’s license). The statements which Salinas sought to suppress were those made by himself and his male passengers at the Sheriff’s Office at Dodge City to Bennett, the immigration officer. The evidence is undisputed that Bennett gave each of these persons" }, { "docid": "3593437", "title": "", "text": "a Miranda warning in Spanish before they were interrogated. Thus, we conclude that there was no violation of Salinas’ fifth amendment rights. Judgment reversed and cause remanded with directions that the order granting Salinas’ motion to suppress be vacated. . A green card is the colloquial term for an alien registration receipt card. See generally 8 C.F.R. § 211.1(b)(1). . Salinas was also given a traffic citation for driving without a driver’s license. . Because the state trooper acted lawfully in initially stopping the car based on his suspicion the driver was intoxicated, and not because of the driver’s apparent Mexican descent, we distinguish the instant case from the unlawful stop made in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). We further find that the brief detention and investigatory questioning of the occupants was reasonable and lawful under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Appellee argues that the state trooper did not have the authority to detain the passengers while he inquired into federal immigration matters, and further, his question about the defendant’s green card was based on a mere hunch. These arguments are without merit. A state trooper has general investigatory authority to inquire into possible immigration violations. Moreover, the trooper’s question about the green card was reasonable under the circumstances, and thus lawful. Terry, 392 U.S. at 19, 88 S.Ct. at 1878-79; United States v. Saldana, 453 F.2d 352 (10th Cir.1972). . Appellee argues that Lt. Furbeck lacked any particular knowledge of the immigration laws and that his call to the Immigration Service was tantamount to a fishing expedition. We disagree. Furbeck’s lack of knowledge of the immigration laws does not preclude a finding of probable cause. An officer who lacks expertise in a particular field does not necessarily mean probable cause is lacking, for lack of experience does not prevent a police officer from “sensing the obvious.” United States v. Strahan, 674 F.2d 96, 100 (1st Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306 (1982)." }, { "docid": "1043101", "title": "", "text": "by resident judges....”). Reviewing courts must also defer to the “ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.” United States v. McRae, 81 F.3d 1528, 1534 (10th Cir.1996); see also Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (reviewing courts must “allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’ ”) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); Ornelas, 517 U.S. at 700, 116 S.Ct. 1657 (“[O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists.”). In practice, this looks more like deference — indeed, double deference — than de novo review. Indeed, the Supreme Court has unanimously reversed courts of appeals for overturning district court decisions denying motions to suppress, even when every single factor identified by the officers involved as suspicious was either innocuous or susceptible of an innocent explanation. See Arvizu, 534 U.S. at 277, 122 S.Ct. 744 (“[undoubtedly, each of these factors alone is susceptible of innocent explanation,” but “[t]aken together, we believe they sufficed to form a particularized and objective basis for ... stopping the vehicle”). With those principles in mind, we proceed to review the “totality of the circumstances” in this case to determine whether the district court was correct to hold that the Fourth Amendment was not violated. B. REASONABLE SUSPICION Mr. Santos does not dispute that he was speeding when he was stopped by Trooper Peech, and thus that the traffic stop was justified at its inception under objective standards. Nor does Mr. Santos dispute that the initial phase of the search, after Trooper Peech returned his documents, was conducted with his express consent. When Trooper Peech proposed to search the black suitcase in Mr. Santos’s trunk, however, Mr. Santos said no. Trooper Peech then detained Mr. Santos while a drug dog was brought to the scene. That detention was not consensual. The" }, { "docid": "29033", "title": "", "text": "a route that is often used to smuggle aliens and drugs. It is true that proximity to the border is a relevant factor in determining whether there is reasonable suspicion to stop a vehicle in the border area. See United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). However, because “[rjoads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well,” the mere fact that the two vehicles were traveling close to the'Mexican' border does not dispense with the probable cause requirement. Id. at 882, 95 S.Ct. 2574. in light of the more demanding standard of probable case, coupled with the government’s lack of evidence that Ms. Valenzuela’s driving raised any legitimate suspicions of illegal activity, we do not think that this fact adds any significant weight to our analysis, as “mere proximity to the border does not automatically place the citizenry within a deconstitutionalized zone.” United States v. Newell, 506 F.2d 401, 405 (5th Cir.1975) (internal quotation marks omitted). In light of the above, the presence of marijuana in Mr. Reynaga’s vehicle adds little to the probable cause analysis. We have considered, the totality of the circumstances known to the border patrol agents, and conclude that the evidence connecting Ms. Valenzuela to the unlawful endeavor in the Cadillac was simply missing when the arrest occurred. Finally, the government argues that-the district court should have deferred to Agent Lewis’s expertise in making inferences from these facts. In support of this argument, the government relies on United States v. Gandara-Salinas, 327 F.3d 1127 (10th Cir.2003). Gandara-Salinas, however, held only that courts should accord proper deference “to an officer’s ability to distinguish between innocent and suspicious actions.” Id. at 1130. It is true that “p]n reviewing on-the-scene judgments of police officers we must, of course, remember that police officers may well ‘draw inferences and make deductions ... that might well elude an untrained . person.’ ” United States v. Myers, 308 F.3d 251, 255 (3d Cir.2002) (quoting United States v. Cortez, 449 U.S. 411," }, { "docid": "6789762", "title": "", "text": "JERRY E. SMITH, Circuit Judge: Nolberto Zuniga-Salinas (“Salinas”) appeals his conviction for possession of marihuana with intent to distribute, on the ground that the evidence was insufficient to support the jury’s verdict, and also appeals the district court’s denial of his motion for a new trial based upon the inadequacy of his counsel. The government cross-appeals the district court’s granting of Salinas’s motion for acquittal after the jury had found him guilty of conspiracy but had acquitted his alleged co-conspirator. We affirm. I. At approximately 5:00 a.m. on Sunday, June 25, 1989, United States Border Patrol Agents Michael Dolan, Danny Ramirez, and Javier Gonzalez saw a black pickup truck heading north at a high speed on Highway 16 toward Hebbronville, Texas. Because they had only seen about eight cars heading in that direction since their shift began at midnight and the truck was traveling so fast, the agents followed it. When the driver of the truck, Salinas, saw the patrol car turn around to follow him, he pulled off the highway onto the grassy shoulder and slowed down. He then returned to the highway and continued north for about a mile, until the agents caught up with him and stopped his truck. Recognizing Salinas as someone who had passed through their checkpoint two nights before at 2:00 a.m., the agents asked him where he was going. He told them that he was from Pharr, Texas, and that he was going to meet his lawyer in Hebbronville. When the agents told him that there was a more direct way to that city, he responded that he was coming from a party in Zapata, Texas, where he had been drinking. The agents then reminded Salinas that it was Sunday and that his lawyer’s office would probably be closed; Salinas replied that he was going to the lawyer’s home, but upon further questioning he admitted that he did not know where the attorney lived. While looking at the truck, the agents noticed that its wheel wells were covered with mud and grass and that the passenger door was ajar. Salinas explained that the" }, { "docid": "4575556", "title": "", "text": "investigators established that, in addition to meeting with Mr. Ash-craft, Mr. Clara-Fernandez had parked his car outside a residence at 904 North Tenth Street on two different occasions — once in front of the residence, and a second time behind the residence where investigators witnessed Mr. Clara-Fernandez conversing with an unidentified white male. Eventually, investigators arranged for surveillance of a drug transaction between Mr. Ashcraft and Mr. Clara-Fernandez. Upon witnessing the transaction, law en forcement officials arrested Mr. Ashcraft and Mr. Clara-Fernandez. When asked during an interview subsequent to his arrest whether he knew of anyone else in Salina whom Mr. Clara-Fernandez would be supplying with drugs, Mr. Ashcraft replied, “Dennis Augustine on North Tenth Street.” (Id. at 13 (capitalization standardized).) Mr. Ashcraft further stated he and Defendant had a mutual acquaintance who had introduced them to Mr. Clara-Fernandez. When asked if Mr. Clara-Fernandez had any reason to visit Defendant’s residence, Mr. Ashcraft answered, “Just to drop off to him.” (Id.) A subsequent computer check for 904 North Tenth Street indicated Defendant had active water service at that address. The affidavit also included information concerning Defendant’s criminal history, particularly mentioning Defendant was previously convicted for a drug-related crime in the 1990s. Additionally, it included information regarding the training and experience in drug investigations of the affiant, who was a lieutenant in the Salina Police Department. Finally, the affidavit included statements regarding the affiant’s knowledge of certain behaviors common among drug dealers, including their tendency to secrete contraband, proceeds of drug sales and records of their transactions within their residences, and their tendency to possess paraphernalia used in weighing and packaging controlled substances. “In reviewing the denial of a motion to suppress, this court views the evidence in the light most favorable to the government and upholds the district court’s factual findings unless clearly erroneous.” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000). However, “[determinations relating to the sufficiency of a search warrant and the applicability of the good-faith exception are conclusions of law ... which this court reviews de novo.” Id. Because the district court did not make" }, { "docid": "3593432", "title": "", "text": "24 L.Ed.2d 110 (1969); United States ex rel. Senk v. Brierley, 381 F.Supp. 447 (M.D.Pa.1974), aff’d, 511 F.2d 1396 (3d Cir.), cert. denied, 423 U.S. 843, 96 S.Ct. 77, 46 L.Ed.2d 63 (1975). In Royer, the Supreme Court noted that “[t]he fact that the officers did not believe there was probable cause and proceeded on a consensual or Terry -stop rationale would not foreclose the State from justifying Royer’s custody by proving probable cause.. .. ” Royer, 103 S.Ct. at 1329. As observed by one judge, since courts have never hesitated to overrule an officer’s determination that he had probable cause to arrest, consistency suggests a court may also find probable cause despite an officer’s judgment that he did not have probable cause to arrest. Bri-erley, 381 F.Supp. at 463. What are the objective facts by which Lt. Furbeck’s actions should be tested? Appellee’s counsel concedes in his brief that Lt. Furbeck’s initial stopping of the car was lawful. Lt. Furbeck found he could not converse with the driver of the vehicle, Salinas, because of the language barrier. From the woman who was seated beside Salinas in the cab of the pickup, Lt. Fur-beck learned that Salinas was from Mexico, that he had no driver’s license or green card, and that they were en route from Colorado to Florida. Further, Lt. Furbeck observed six adult males in the bed of the pickup under an aluminum camper shell. He was also unable to converse with any of these six passengers because of the language barrier. However, he learned from Mrs. Salinas that the six passengers were also from Mexico and that none had identification papers or green cards. Applying the objective probable cause test to these facts, it is our view Lt. Furbeck had probable cause to make a warrantless arrest for violation of the immigration laws at this point in time. Lt. Furbeck’s subsequent call to the local authorities of the Immigration and Naturalization Service does not defeat the existence of probable cause. Although we find that probable cause existed before Lt. Furbeck called the Immigration Service, we note that" }, { "docid": "7330331", "title": "", "text": "up on the original suspicion that the vehicle was stolen ..., [Officer Gaines’] investigation began to focus on the contents of the vehicle.” The district court determined the subsequent line of inquiry was valid only if it was supported by reasonable, articulable suspicion that Mr. Alvarez was carrying contraband. The facts cited by the government: Mr. Alvarez’s statement he was carrying only clothes in the truck; his initial nervousness; and the presence of air freshener, did not amount to a reasonable, articu-lable suspicion the defendant was carrying contraband. Consequently, the district court ruled Mr. Alvarez’s subsequent consent to the officer’s request to search the vehicle was tainted by the illegal detention preceding it and, therefore, the evidence was suppressed. DISCUSSION In reviewing motions to suppress, we accept the trial court’s factual findings unless clearly erroneous and review de novo the ultimate determination of reasonableness under the Fourth Amendment. United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (en banc). A routine traffic stop constituting an investigative detention is constitutional only if supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir.1995). More specifically, the reasonableness of a stop must be evaluated by asking first, “whether the officer’s action was justified at its inception,” and second, “whether [the action] was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968). Courts are to view the officer’s conduct through a filter of “common sense and ordinary human experience,” United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994) (citation omitted), and in light of “the totality of the circumstances,” United States v. Fernandez, 18 F.3d 874, 878 (10th Cir.1994). This approach is intended to “avoid unrealistic second-guessing of police officers’ decisions,” Melendez-Garcia, 28 F.3d at 1052 (citation omitted), and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions, United States v. Lopez-Martinez, 25 F.3d" }, { "docid": "1799302", "title": "", "text": "Garcia consented and led them to the area where Mr. Salinas-Cano kept his belongings. The police opened and searched Mr. Salinas-Cano’s closed but unlocked suitcase, inside of which they discovered a quantity of cocaine. In his testimony at the suppression hearing, the searching officer conceded that he had no basis for probable cause to search the apartment or its contents, and that the search was authorized, if at all, only by Ms. Garcia’s consent. Rec., vol. I, at 41. Moreover, it is undisputed that the officer knew when he searched the suitcase that Mr. Salinas-Cano owned it. The officer thus testified as follows: “Q [W]hen you spoke to Shirley Garcia you asked her specifically about Mr. Salmas; did you not? A Yes sir, I did. Q And she told you that he occasionally stayed at that apartment? A That is correct. Q And you were aware that there were items in that apartment that belonged to Mr. Salinas because you asked Shirley Garcia about it; did you not? A Yes, sir, that is correct. Q And she is the person who took you to the bedroom and showed you where his belongings were? A Yes, sir, that is correct. Q But Shirley Garcia never indicated to you that that suitcase belonged to her, did she? A No, she did not. Q She never indicated to you that the contents of that suitcase belonged to her, did she? A In fact she denied that the contents of that suitcase belonged to her, yes, sir. Q So she specifically denied that she owned that suitcase and you knew at the time that you seized that suitcase that it belonged to Mr. Salinas? A Yes, sir.” Rec., vol. I, at 40-41 (emphasis added). Indeed, the officer desired to search the suitcase only because he knew it belonged to Mr. Salinas-Cano. Id. at 41. In denying Mr. Salinas-Cano’s motion to suppress the evidence discovered in the suitcase, the district court found as follows: “The suitcase belonging to the defendant was placed by him with the consent of the renter or lessor of the apartment," }, { "docid": "29034", "title": "", "text": "quotation marks omitted). In light of the above, the presence of marijuana in Mr. Reynaga’s vehicle adds little to the probable cause analysis. We have considered, the totality of the circumstances known to the border patrol agents, and conclude that the evidence connecting Ms. Valenzuela to the unlawful endeavor in the Cadillac was simply missing when the arrest occurred. Finally, the government argues that-the district court should have deferred to Agent Lewis’s expertise in making inferences from these facts. In support of this argument, the government relies on United States v. Gandara-Salinas, 327 F.3d 1127 (10th Cir.2003). Gandara-Salinas, however, held only that courts should accord proper deference “to an officer’s ability to distinguish between innocent and suspicious actions.” Id. at 1130. It is true that “p]n reviewing on-the-scene judgments of police officers we must, of course, remember that police officers may well ‘draw inferences and make deductions ... that might well elude an untrained . person.’ ” United States v. Myers, 308 F.3d 251, 255 (3d Cir.2002) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). However, “an officer’s inferences and deductions can only justify a warrant-less arrest if the government..satisfies its burden of. establishing the probable cause necessary .to support the arrest.” Id. Additionally, in making our probable cause determination, .we must look at the facts through the scope of a reasonable officer. United States v. Anderson, 981 F.2d 1560, 1566 (10th Cir.1992). To defer to an officer’s interpretation of the facts without applying judgment informed by the Fourth Amendment would eviscerate the need for a judicial determination of probable cause. The inescapable conclusion to be drawn from the record is that Agents Lewis and Huerta suffered from a lack of communication and failed to fully investigate the facts before arresting Ms. Valenzuela. Agent Lewis testified that he only told Agent Huerta to stop the vehicle and see if he could transport Ms. Valenzuela to the border patrol station. Aplt.App. at 162-63. It is not exactly clear why Agent Huerta felt compelled to handcuff Ms. Valenzuela and put her in the back" }, { "docid": "14541223", "title": "", "text": "by reasonable suspicion to believe that criminal activity ‘ “may be afoot.” ’ ” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868)). The Supreme Court has emphasized that, in determining whether an investigatory stop is supported by reasonable suspicion, courts must “ ‘look at the totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Id. The evaluation is made from the perspective of the reasonable officer, not the reasonable person. Officers must be permitted “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Id. (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)); see also Gandara-Salinas, 327 F.3d at 1130. In determining whether a stop in a border area is supported by reasonable suspicion, the following factors are relevant; (1) characteristics of the area in which the vehicle is encountered; (2) the proximity of the area to the border; (3) the usual patterns of traffic on the particular road; (4) the previous experience of the agent with alien traffic; (5) information about recent illegal border crossings in the area; (6) the driver’s behavior, including any obvious attempts to evade officers; (7) aspects of the vehicle, such as a station wagon with concealed compartments; and (8) the appearance that the vehicle is heavily loaded. Gandara-Salinas, 327 F.3d at 1129-30 (quoting United States v. Monsisvais, 907 F.2d 987, 990 (10th Cir.1990) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975))). When evaluating these factors, a court must not engage in the kind of “divide-and-conquer analysis” rejected by the Arvizu Court. See Arvizu, 534 U.S. at 274, 122 S.Ct. 744; Gandara-Salinas, 327 F.3d at 1130. That is, a court must not separate out each factor and reject the officer’s determination of reasonable suspicion simply because each" }, { "docid": "3593428", "title": "", "text": "that Furbeck have the group follow him in their vehicle to Dodge City, and then Bennett would talk to them by telephone. Accordingly, Furbeck had Mrs. Salinas, who had a driver’s license, follow him to the Sheriff’s office in Dodge City. Upon arrival, the group was taken into a reception area. Bennett called and spoke in Spanish to Salinas. Immediately after Salinas identified himself on the telephone, Bennett read him his Miranda warnings in Spanish and Salinas indicated he understood them. Later, Bennett spoke to the six male passengers in Spanish, giving the Miranda warning to each. Without going into the details, all seven stated that they were illegally in the United States, with Salinas also admitting that he knew the six passengers were illegal aliens. It was on this sequence of events that Salinas was charged in six counts with transporting six illegal aliens in violation of 8 U.S.C. § 1324(a)(2). At the hearing on the defendant’s motion to suppress, the district court held that Lt. Furbeck arrested the defendant and the six passengers without probable cause, thereby violating Salinas’ fourth amendment rights, and that such illegality carried over and tainted the incriminating statements subsequently made to Bennett, the immigration officer. The court, therefore, suppressed the statements of the defendant and also the statements taken from the six alien passengers. [I] As stated, the government filed its appeal within 30 days of the suppression order, as required by 18 U.S.C. § 3731. The government, however, did not file the certification required by § 3731 with the district court until after the 30-day period expired. Defendant-appellee argues the appeal should be dismissed because of the government’s tardy filing of the required certification. We disagree. Such does not defeat the jurisdiction of this Court. In United States v. Welsch, 446 F.2d 220 (10th Cir. 1971), we specifically held that the failure to file the certificate required by § 3731 is an irregularity in perfecting an appeal which does not, however, operate to deprive us of jurisdiction. Our study of the record leads us to conclude that Lt. Furbeck did have probable" }, { "docid": "1799301", "title": "", "text": "SEYMOUR, Circuit Judge. This case requires that we review the authority of a person other than the owner to consent to a search of a closed suitcase. Abel Gilberto Salinas-Cano entered a conditional plea of guilty to possession with intent to distribute more than 500 grams of cocaine. He contends on appeal that his girlfriend did not have authority to consent to a search of his suitcase in which the cocaine was discovered. For the reasons set out below, we reverse. I. The relevant facts are essentially undisputed. Mr. Salinas-Cano left his suitcase at his girlfriend’s apartment, where he spent several nights each week at her invitation. His girlfriend, Shirley Garcia, was the only tenant named on the lease of the apartment and the sole rentpayer. The police observed Mr. Salinas-Cano going in and out of Ms. Garcia’s apartment, and after they arrested him following a controlled drug buy, they went to her apartment and asked for permission to search it. They told her they were specifically interested in Mr. Salinas-Cano and his possessions. Ms. Garcia consented and led them to the area where Mr. Salinas-Cano kept his belongings. The police opened and searched Mr. Salinas-Cano’s closed but unlocked suitcase, inside of which they discovered a quantity of cocaine. In his testimony at the suppression hearing, the searching officer conceded that he had no basis for probable cause to search the apartment or its contents, and that the search was authorized, if at all, only by Ms. Garcia’s consent. Rec., vol. I, at 41. Moreover, it is undisputed that the officer knew when he searched the suitcase that Mr. Salinas-Cano owned it. The officer thus testified as follows: “Q [W]hen you spoke to Shirley Garcia you asked her specifically about Mr. Salmas; did you not? A Yes sir, I did. Q And she told you that he occasionally stayed at that apartment? A That is correct. Q And you were aware that there were items in that apartment that belonged to Mr. Salinas because you asked Shirley Garcia about it; did you not? A Yes, sir, that is correct. Q" }, { "docid": "6531459", "title": "", "text": "on, however, to find the following statement in Wardlow controlling: “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 528 U.S. at 124, 120 S.Ct. 673. Given our discussion above of the numerous factors erroneously rejected by the district court, this latter statement obviously does not apply in this case. 6. The Totality of the Circumstances In ignoring these reasons for Officer Middleton’s continuing suspicion, the district court “failed to accord deference to the [officer’s] ability to ‘draw on (his) own experience and specialized training to make inferences from and deductions about the cumulative information available to (him) that might well elude an untrained person.’” Gandara-Salinas, 327 F.3d at 1130 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)). All of these factors, mitigating and aggravating, should have been analyzed as part of the totality of the circumstances faced by Officer Middleton at the inception of the detention. When we apply the proper legal analysis to the fact findings of the district court, then, the record shows that the following circumstances faced Officer Middleton at the time of the detention: (1) the police had received a call from a citizen who gave his phone number (but not his name) and described an adult male forcing a juvenile girl down the street; (2) the caller gave a detailed and accurate description of Johnson’s and Samantha’s appearance and where officers would find them; (3) the caller did not know if the man was armed; (4) the dispatcher requested that officers check on a suspicious person and attached the department’s second-highest priority to it; (5) Officer Middleton’s brief observation did not suggest that Johnson was using force on Samantha; (6) Samantha and Johnson both denied the caller’s allegations when first questioned; (7) drug dealers, pimps, and kidnappers are often armed; (8) Johnson was nervous, if not abnormally so, but also cooperative and polite; (9) Johnson was depressing the transmission button on a walkie-talkie; (10) individuals involved in" }, { "docid": "3593427", "title": "", "text": "“green card,” and she said he did not. Furbeck then asked Mrs. Salinas who the persons were in the back of the pickup. She indicated they were friends who had been working with them on a farm in Colorado and had asked for a ride to Florida. The officer asked her to accompany him to the rear of the truck. Six males got out of the rear of the truck, and none of them spoke English, nor did they have identification. Mrs. Salinas acted as interpreter and advised the trooper that the six passengers were also from Mexico. Lt. Furbeck, candidly admitted at the hearing that at this point, “I didn’t know exactly what I had.” Hence, he decided to contact the Immigration Service which had an office at nearby Garden City, Kansas. At the scene of the stopping, Furbeck, on his police car radio, then contacted his patrol dispatcher, who in turn contacted Jim Bennett, an investigator for the Immigration and Naturalization Service in Garden City. Upon being informed of the events, Bennett suggested that Furbeck have the group follow him in their vehicle to Dodge City, and then Bennett would talk to them by telephone. Accordingly, Furbeck had Mrs. Salinas, who had a driver’s license, follow him to the Sheriff’s office in Dodge City. Upon arrival, the group was taken into a reception area. Bennett called and spoke in Spanish to Salinas. Immediately after Salinas identified himself on the telephone, Bennett read him his Miranda warnings in Spanish and Salinas indicated he understood them. Later, Bennett spoke to the six male passengers in Spanish, giving the Miranda warning to each. Without going into the details, all seven stated that they were illegally in the United States, with Salinas also admitting that he knew the six passengers were illegal aliens. It was on this sequence of events that Salinas was charged in six counts with transporting six illegal aliens in violation of 8 U.S.C. § 1324(a)(2). At the hearing on the defendant’s motion to suppress, the district court held that Lt. Furbeck arrested the defendant and the six passengers" } ]

[ { "docid": "22760693", "title": "", "text": "appellant alleges, that pain may be a sufficient disability for social security purposes, Glass v. Secretary of Health, Ed. & Welfare, 517 F.2d 224 (6th Cir. 1975); and while it is true that a treating physician’s diagnosis is to be given greater weight in the scales than the government’s physician, that is only appropriate if the treating physician supplies sufficient medical data to substantiate the diagnosis. 20 C.F.R. § 404.1529 (1981). Here, appellant’s doctors often concluded, without much medical support, that he was prevented from pursuing all work opportunities. These broad conclusory formulations, regarding the ultimate issue which must be decided by the Secretary, are not determinative of the question of whether or not an individual is under a disability. 20 C.F.R. § 404.1527 (1981). This is particularly true when pain is the disabling illness. Allen v. Califano, supra, at 145; 20 C.F.R. § 404.-1529 (1981). The physician who supported appellant’s claim, Dr. Black, repeatedly changed his mind about appellant’s abilities. The majority of medical testimony indicated that sedentary work was possible. Since credibility, especially with alleged pain, is crucial to resolution of the claim, the ALJ’s opportunity to observe the demeanor of the claimant “is invaluable, and should not be discarded lightly.” Beavers v. Secretary of Health, Ed. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978). For these reasons we find substantial evidence to support the ALJ’s determination that appellant Melvin is not disabled within the meaning of the Social Security Act and affirm the District Court. Appellant Stallings’ claim was filed in 1978. He was 41 years of age when his insured status expired. He has a third grade education, but was found to be functionally illiterate. His relevant past work consisted mainly of operating a punch press, with stints as a furnace operator and innkeeper, but all were considered unskilled for purposes of the grid. His medical ailments include arthritis, post-surgical back problems and “nerves.” Appellant also had an alcohol problem, consuming up to 12 beers a day. Record at 59. His medication includes high-blood pressure pills, “relaxing pills” (Valium) and pills for arthritis. Record at" } ]

[ { "docid": "23235590", "title": "", "text": "we consider the critical issue in this case: whether appellant’s pain alone may be considered disabling. This issue pits the rule that substantial deference must ■ be given to the uncontradicted opinion of the treating physician, see supra, against the rule that an AU’s findings based on the credibility of the applicant are to be accorded great weight. Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383 (6th Cir.1978). It is well settled that pain alone, if the result of a medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 2428 (1983); Beavers, supra, 577 F.2d at 386; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). The AU concluded that appellant was not disabled because he was capable of performing sedentary work as that is defined in the regulations. He reached this conclusion on the basis of his finding that no medical evidence had shown that appellant was incapable of sitting for most of an eight hour workday and his finding that appellant’s complaints of constant, severe and disabling pain were incredible. The district court held that the ALJ was within his power in weighing the conflicting medical evidence and making his decision after considering also the credibility of appellant. If this were the complete and accurate description of appellant’s case, we would agree with the district court. Significantly, however, we find no conflicting medical evidence in the record on the issue of pain. See Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224 (6th Cir.1975) (per curiam); Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975). Dr. Larrick reported in November 1980 that appellant suffered from “severe low back pain” and in November 1981 that any relief of appellant’s pain through manipulation or traction is only temporary. While it might be said that, without any other data to support these conclusions, the ALJ was justified in not according much deference to them, see Kirk, supra, 667 F.2d at 538, on this record we find" }, { "docid": "22574398", "title": "", "text": "credibility of a claimant and to arrive at an independent judgment [regarding that pain, he must do so] in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.” McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir.1980), quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). It is clear that the AU’s decision to disregard Mimm’s testimony concerning disabling pain was based on his blind assumption that appellant’s treating physician considered such pain in determining his residual functional capacity. Especially, given the claimant’s pro se status, we hold that the claimant’s assertions of disabling pain cannot be rejected solely on the unfounded assumption that the treating physicians considered them. An AU is not free to assume that a factor, such as pain, was considered in formulating a medical opinion when there is no evidence that such was the case. In hearings involving pro se claimants, an AU has the duty to “inquire of,” “explore for” and “probe into” the existence of relevant facts, he is not to “assume” their existence. See Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972). Whether or not the AU was cognizant of the claimant’s responses to those questions, it is clear he did not have them before him in the form of a transcript of the hearing. Hence we deem it desirable that the information missing in the transcript be elicited on remand. IV. Claimant’s Ability to Perform Alternative Substantial Gainful Work When a claimant has established that his impairment prevents his return to his prior employment, the Secretary must put forth evidence to establish the existence of alternative substantial gainful work which the claimant could perform. At the hearing, a vocational expert was called by the AU to review the evidence in the claimant’s case and assess whether he was capable of substantial gainful employment. The expert opined that, considering claimant’s age, past work experience and impairments, he could transfer his existing skills to sedentary, semi-skilled positions. The vocational expert then proceeded to name four" }, { "docid": "23235589", "title": "", "text": "that instead the Secretary should gauge the overall condition of the claimant. We find Thompson to be inapposite. The doctors in that case could not agree on a reasonably conclusive diagnosis. In view of that, the district court held that it was error to match that claimant’s symptoms against those of any single listed impairment; rather, the combination of impairments was believed to be “equivalent” to the disabling listed impairments “in terms of her ‘total physiological well-being.’ ” Id. at 1290. Even if the generous concept of “equivalence” used in Thompson were consistent with the concept outlined in the regulations, it does not help appellant in the instant case. Here all the doctors essentially agreed that appellant has sustained a vertebrogenic disorder. Hence it was not error to require that appellant establish either the symptoms listed at 1.05(C) or other symptoms that are equally severe. Not having sustained this burden, appellant cannot be said to have an impairment equal to the impairment at Listing 1.05(C). (C) Pain Alone as Disabling We now turn to what we consider the critical issue in this case: whether appellant’s pain alone may be considered disabling. This issue pits the rule that substantial deference must ■ be given to the uncontradicted opinion of the treating physician, see supra, against the rule that an AU’s findings based on the credibility of the applicant are to be accorded great weight. Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383 (6th Cir.1978). It is well settled that pain alone, if the result of a medical impairment, may be severe enough to constitute disability. Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 2428 (1983); Beavers, supra, 577 F.2d at 386; Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979). The AU concluded that appellant was not disabled because he was capable of performing sedentary work as that is defined in the regulations. He reached this conclusion on the basis of his finding that no medical evidence had shown that appellant was incapable of sitting" }, { "docid": "23235591", "title": "", "text": "for most of an eight hour workday and his finding that appellant’s complaints of constant, severe and disabling pain were incredible. The district court held that the ALJ was within his power in weighing the conflicting medical evidence and making his decision after considering also the credibility of appellant. If this were the complete and accurate description of appellant’s case, we would agree with the district court. Significantly, however, we find no conflicting medical evidence in the record on the issue of pain. See Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224 (6th Cir.1975) (per curiam); Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975). Dr. Larrick reported in November 1980 that appellant suffered from “severe low back pain” and in November 1981 that any relief of appellant’s pain through manipulation or traction is only temporary. While it might be said that, without any other data to support these conclusions, the ALJ was justified in not according much deference to them, see Kirk, supra, 667 F.2d at 538, on this record we find that the reports of the other physi dans provide ample support for Dr. Larriek’s condusions. Dr. Shahabi, designated by the Secretary to examine appellant, reported that appellant’s pain during the examination was manifest and that the pain significantly restricted appellant’s movement. We do not understand Dr. Shahabi’s statement that ambulatory aids were unnecessary to mean that appellant’s pain was not real, but rather that such aids would have no therapeutic value. Dr. Martz’ hospitalization discharge summary likewise supports the conclusion of substantial pain, manifested in significant restriction of movement. Thus, unlike in Kirk and Beavers, there were no conflicts in the medical evidence regarding appellant’s claim of pain. The expansive lead given to the AUs in those two cases to rely on their findings of credibility is not wholly applicable here. The medical evidence, all consistent with the treating physician’s opinion of severe and essentially constant pain, fully supported appellant’s own testimony regarding his sedentary lifestyle, which included lying down for up to 14 hours during the daytime. Here “documented [is] a long history of" }, { "docid": "22905744", "title": "", "text": "20 C.F.R. § 404.1529. Ultimately, the determination of disability is the prerogative of the Secretary, not the treating physician, and the brief conclusory letter from appellant’s treating physician, was not dispositive of the issue. Kirk v. Secretary of Health and Human Services, supra at 538; 20 CFR § 404.1527 (1981). Appellant claimed that her muscle spasms alone caused disabling pain. Although pain caused by clinically proven multiple impairments can be the disabling illness, Allen v. Califano, supra at 145, (citing Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383 (6th Cir.1978) and Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975)), tolerance of pain is a highly individual matter and a determination of disability based on pain by necessity depends largely on the credibility of the claimant. Since the A.L. J. had the opportunity to observe the demeanor of the appellant, his conclusions with respect to credibility “should not be discarded lightly”. Beavers v. Secretary of Health, Education and Welfare, supra at 387. The A.L.J. noted that plaintiff did not appear preoccupied with personal discomfort and was able to get about without difficulty. The medical evidence contained no proof that appellant’s spasms were frequent or of disabling severity, and appellant took muscle relaxants to control the spasms. Based on the evidence of record, on appellant’s personal appearance and demeanor, he concluded that appellant’s muscle spasms were not of such severity, duration, or frequency as to be disabling for a continuous period of twelve months, appellant’s testimony notwithstanding. In conclusion, the record included substantial evidence in support of the finding that appellant was not disabled under the provisions of the Social Security Act. Since the findings of the Secretary were supported by substantial evidence, deference to his decision is statutorily mandated. The decision of the district court is, therefore, affirmed. WEICK, Senior Circuit Judge, dissenting: I respectfully dissent. 42 U.S.C. § 423(d)(1)(A) defines “disability” 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" }, { "docid": "22323347", "title": "", "text": "with all other evidence in the record. We reject Walters’s claim that the ALJ was required to accord any more deference than this. B. Credibility Assessment Walters also maintains that the ALJ’s determination concerning his ability, to perform his past relevant work is faulty because it was based partially on the ALJ’s improper assessment of his credibility. In evaluating complaints of pain, an ALJ may properly consider the credibility of the claimant. See Kirk v. Secretary of Health and Human Servs., 667 F.2d 524, 538 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). Furthermore, an ALJ’s findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness’s demeanor and credibility. See Villarreal v. Secretary of Health and Human Servs., 818 F.2d 461, 463 (6th Cir.1987). Nevertheless, an ALJ’s assessment of a claimant’s credibility must be supported by substantial evidence. See Beavers v. Secretary of Health, Educ. and Welfare, 577 F.2d 383, 386-87 (6th Cir.1978). We conclude, however, that substantial evidence exists in the record to support the ALJ’s adverse credibility finding. An individual’s statements as to “pain or other symptoms will not alone establish that [he is] disabled....” 20 C.F.R. § 404.1529(a). This court has developed a two-prong test to evaluate a claimant’s assertions of disabling pain: First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain. Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir.1994) (quoting Duncan v. Secretary of Health and Human Servs., 801 F.2d 847, 853 (6th Cir.1986)); see also 20 C.F.R. § 404.1529(a). Walters’s medical records contain very little objective, physical, or clinical evidence of disabling severity, and no medical evidence has been presented suggesting that Walters’s medical conditions can reasonably" }, { "docid": "21718492", "title": "", "text": "back. Anatomical changes in the back area were noted to be “minimal” in comparison with appellant’s symptoms and functional deficits. Dr. Kelman noted that “the degree of complaints [of pain] are certainly disproportionate to the clinical examination.” This sufficiently supports the Secretary’s finding. B. Substantial Evidence to Support Final Determination. The Secretary determined that appellant was not disabled, finding that his impairments did not prevent him from performing his past work as a security guard. This determination is supported by substantial evidence. Medical examinations after appellant’s back surgery revealed no abnormal physical incapacitation. Dr. Wood felt that appellant could perform light work, and Dr. Kelman implied the same. The vocational expert testified that appellant would be capable of working at limited types of security guard positions. Appellant himself testified that he felt he could perform his past job as hospital guard. Accordingly, the final decision of the Secretary is AFFIRMED. . It is undisputed that the HHS Appeals Council has the power to review de novo and reverse factual findings made by an AU. See Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 386 (6th Cir.1978). In this situation, the “final decision of the Secretary,” to which we owe statutorily-mandated deference, see 42 U.S.C. § 405(g), is the decision of the Appeals Council. See Beavers, 577 F.2d 386. . Social Security regulations, issued in August, 1980, provide that: We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effect of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms. 20 C.F.R. § 404.1529 (1984). . The legislative history of section 3 notes with concern that, despite the federal regulations, ALJs and federal courts have continued to give heavy weight to subjective evidence" }, { "docid": "23235582", "title": "", "text": "“He can do occasional walking and standing and although he appeared at the hearing with a crutch, Dr. Shahabi indicates no ambulation, aids are required. The claimant has good muscle strength and the lifting of up to 10 pounds in a seated position would not seem to be contraindicated. Therefore, I conclude that at all relevant times the claimant has had the residual functional capacity for at least sedentary work as defined by Regulations 404.1567. I further find that he does not have any non-exertional limitations resulting from his impairment.” On the final page of his decision, under “Findings of Fact and Conclusions of Law”, the AU made the following finding: “3. The medical evidence shows the claimant has low back pain, however, his complaints of constant, severe and disabling pain [are] not found to be credible.” The AU determined, after applying Rule 201.27 of Appendix 2 of the regulations, the so-called “Grid Regulations”, that appellant was not disabled. On January 5, 1982, appellant requested a review of the AU’s decision before the Appeals Council. His request was denied on March 4, 1982. The AU's decision thereby became the final decision of the Secretary. Appellant commenced the instant action in the district court on April 22, 1982. Both parties moved for summary judgment. On May 31, 1983, the court rendered its decision as stated above. The court stated that the AU’s first conclusion — that appellant’s impairment did not meet the condition found in Listing 1.05(C) —was supported by substantial evidence. As for the AU’s finding regarding appellant’s complaints of pain, the court stated that the AU’s “resolution of the conflicting medical evidence, as well as his decision to discount plaintiff’s subjective complaints of severely disabling pain, are both supported by substantial evidence.” Citing precedent in this Court, the district court added that the AU’s opportunity to observe the demeanor of the complainant should not be discarded lightly. On this appeal, appellant contends (1) that his impairment meets or equals the impairment in Listing 1.05(C) of the regulations and that the AU’s conclusion to the contrary was not supported by" }, { "docid": "16747345", "title": "", "text": "at 387; LeMaster v. Weinberger, 533 F.2d 337, 339-40 (6th Cir.1976). The statutorily-mandated deference runs in favor of the Secretary and the Appeals Council, not the AU and the Appeals Council may reach conclusions differing from those of the AU, which we must uphold if supported by substantial evidence. See Beavers, 577 F.2d at 386. Here, the claimant’s age, education and past work experience were not in dispute, and even the AU did not find that Parris’ exertional limitations alone rendered her incapable of sedentary activity. Accordingly, an application of the “grids,” 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 201.18, dictated a finding of “not disabled,” unless nonexertional limitations could be shown, which would require the Secretary to make an individualized determination of the claimant’s ability to perform specific jobs in the national economy. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983). Of the various ailments alleged by Parris and accepted by the AU, only the pain and vision difficulties might have constituted valid nonexertional impairments if proven, and the Appeals Council did not find either of those impairments to exist on or before September 30, 1978. As to the residuals of cataracts, there is no medical evidence demonstrating a disabling severity in 1978, as shown from an eye examination performed while claimant was hospitalized in January 1978. While there is evidence, as recognized by the Appeals Council, that Parris was treated for back pain in 1978, objective medical evidence showing this pain to have been of a disabling severity is absent. The Secretary may not ignore entirely evidence of pain which the AU has found credible, Combs v. Weinberger, 501 F.2d 1361, 1363 (4th Cir.1974); nonetheless, subjective allegations alone cannot be determinative where there is at least some evidence, as here, that the Appeals Council gave attention to the matter. Pain is not disabling per se, and subjective evidence of pain cannot take precedence over objective medical evidence or the lack thereof. See Laffoon v. Califano, 558 F.2d 253, 255 (5th Cir. 1977). In conclusion, we find that the Secretary’s determination that the claimant was not" }, { "docid": "22116420", "title": "", "text": "standards in considering his allegations of pain and his multiple impairments, that the Secretary did not give appropriate consideration to the opinion of Dr. Stevens, his treating physician, and that the AU did not give him an adequate hearing. II. Pursuant to 42 U.S.C. § 405(g), the findings of the AU are conclusive if they are supported by substantial evidence. Accordingly, our review is limited to determining whether there is substantial evidence in the record to support the findings. “ ‘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.’ ” Kirk v. Secretary of Health & Human Services, 667 F.2d 524, 535 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In determining this question, we examine the evidence in the record “taken as a whole.” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980). A. The AU made a factual finding that Duncan’s subjective complaints were not supported by the objective medical evidence. Duncan argues that with respect to his subjective complaints of pain this finding is not supported by substantial evidence. As support for his contention, Duncan asserts that the AU failed to apply the proper standard in considering his allegations of disabling pain. This court has previously held that subjective complaints of pain may support a claim of disability. Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224, 225 (6th Cir.1975); see also Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 386 (6th Cir.1978). We have also recognized that determinations of credibility related to subjective complaints of pain rest with the AU and that “the AU’s opportunity to observe the demeanor of the claimant 'is invaluable, and should not be discarded lightly.’ ” Kirk, 667 F.2d at 538, quoting Beavers, 577 F.2d at 387. Claims of disability due to pain have been decided on a case by case basis with these general principles in mind." }, { "docid": "23235583", "title": "", "text": "His request was denied on March 4, 1982. The AU's decision thereby became the final decision of the Secretary. Appellant commenced the instant action in the district court on April 22, 1982. Both parties moved for summary judgment. On May 31, 1983, the court rendered its decision as stated above. The court stated that the AU’s first conclusion — that appellant’s impairment did not meet the condition found in Listing 1.05(C) —was supported by substantial evidence. As for the AU’s finding regarding appellant’s complaints of pain, the court stated that the AU’s “resolution of the conflicting medical evidence, as well as his decision to discount plaintiff’s subjective complaints of severely disabling pain, are both supported by substantial evidence.” Citing precedent in this Court, the district court added that the AU’s opportunity to observe the demeanor of the complainant should not be discarded lightly. On this appeal, appellant contends (1) that his impairment meets or equals the impairment in Listing 1.05(C) of the regulations and that the AU’s conclusion to the contrary was not supported by substantial evidence; (2) that all the medical evidence supported his complaints of severe pain and that the AU’s conclusion to the contrary was without support in the evidence; and (3) that the AU did not give proper weight to the medical opinion of appellant’s treating physician. II. (A) Medical Opinion of Treating Physician Turning first to appellant’s third argument listed immediately above, we believe this is not really an independent argument, but rather is interwoven in the evaluation of the first two arguments. To the extent that appellant contends the AU was bound by Dr. Larrick’s opinion that appellant was “permanently and totally disabled”, appellant is mistaken. A determination of “disability” for the purposes of awarding disability insurance benefits is to be made “only if [the claimant’s] 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. §" }, { "docid": "23235595", "title": "", "text": "Cir.1984); Weaver v. Secretary of Health and Human Services, 722 F.2d 310, 312 (6th Cir.1984). It follows that, where all the medical evidence consistently supports the applicant’s complaint of severe back pain, as here, the ALJ’s observation of the applicant at the hearing will not provide the underpinning for denial of Social Security benefits. . For example, the evidence of appellant’s work history, which shows a return to work after his 1978 fall despite his continued pain, does not readily support an inference that appellant is a malingerer. . The Secretary argues that appellant’s pain is purely an exertional impairment, thus justifying the conclusion that appellant is capable of sedentary work. Even if we were to accept the premise, we think it ludicrous, in light of the minimal amount of exertion required to cause the pain, to think of hanging our hats on that distinction. WELLFORD, Circuit Judge, dissenting. I believe the AU had substantial evidence to support a finding that plaintiff is not disabled due to pain alone. The AU specifically found that, while the medical evidence indicated that plaintiff “has low back pain ... his complaints of constant, severe and disabling pain is [sic] not found to be credible.” As the majority has noted, when a claimant’s testimony of subjective pain and discomfort is supported by clinical and diagnostic evidence, the Secretary cannot lightly reject that testimony. Noe v. Weinberger, 512 F.2d 588, 595-96 (6th Cir. 1975). On the contrary, however, “the mere existence of pain is not an automatic ground for proven disability.” Newborn v. Harris, 602 F.2d 105, 107 (5th Cir.1979). The district court held that the findings of Dr. Shahabi constituted substantial evidence in support of the Secretary’s decision. On January 23, 1981, plaintiff underwent an examination and disability evaluation by Dr. Shahabi. This examination revealed a well nourished and developed obese man, walking with a limping gait. Range of motion of the lumbosacral was restricted, but the range of motion of the cervical spine was unremarkable in all directions. The upper and lower extremities active and passive range of motion and manual muscle testing" }, { "docid": "23235592", "title": "", "text": "that the reports of the other physi dans provide ample support for Dr. Larriek’s condusions. Dr. Shahabi, designated by the Secretary to examine appellant, reported that appellant’s pain during the examination was manifest and that the pain significantly restricted appellant’s movement. We do not understand Dr. Shahabi’s statement that ambulatory aids were unnecessary to mean that appellant’s pain was not real, but rather that such aids would have no therapeutic value. Dr. Martz’ hospitalization discharge summary likewise supports the conclusion of substantial pain, manifested in significant restriction of movement. Thus, unlike in Kirk and Beavers, there were no conflicts in the medical evidence regarding appellant’s claim of pain. The expansive lead given to the AUs in those two cases to rely on their findings of credibility is not wholly applicable here. The medical evidence, all consistent with the treating physician’s opinion of severe and essentially constant pain, fully supported appellant’s own testimony regarding his sedentary lifestyle, which included lying down for up to 14 hours during the daytime. Here “documented [is] a long history of fruitless treatment for severe headaches and leg and back pain.” Beavers, 577 F.2d at 386. In light of this uncontradicted and overwhelming medical and lay evidence of appellant’s severe back pain, we decline to give substantial deference to the ALJ’s unexplained credibility finding. It was error for the AU, without any substantial support, to find appellant not disabled. See Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984) (despite AU’s findings that complaints of pain were incredible, court reversed because of uncontradicted medical evidence of impairments leading to pain). We hold on this record that there is but one reasonable conclusion: that due to severe and constant back pain, resulting from two laminectomies and degenerative disc disease, for which he has been receiving treatment providing only temporary relief for almost ten years, and which has caused substantial restriction of movement and curtailment of regular activities, appellant lacks the residual functional capacity to perform any substantial gainful activity. He therefore is disabled. The judgment is reversed and the case is remanded to the district court with instructions" }, { "docid": "22905743", "title": "", "text": "that appellant’s impairments were controlled with medication and were not seriously disabling. Her physician described the hypertension as “mild”. It did not result in a severe impairment of her cardiac reserve or in any retinal, renal, cerebral, or cardiac involvement, or in any end organ damage. The osteoarthritis caused no real loss of movement. The visual decrease was not significant in acuity or field. The urinary tract infection, although recurrent was treatable, as were the muscle spasms. Moreover, a review of the final diagnoses from the various hospitalizations did not show that any of appellant’s impairments lasted for a continuous twelve months. Appellant recovered totally from several of her maladies. Hence there was no clear support for a finding of disability. See Henry v. Gardner, 381 F.2d 191, 195 (6th Cir.1967). Appellant correctly asserted that the opinion of the treating physician should be given greater weight than that of the government’s physician. See Allen v. Califano, supra at 145. This is true, however, only if the treating physician’s opinion is based on sufficient medical data. 20 C.F.R. § 404.1529. Ultimately, the determination of disability is the prerogative of the Secretary, not the treating physician, and the brief conclusory letter from appellant’s treating physician, was not dispositive of the issue. Kirk v. Secretary of Health and Human Services, supra at 538; 20 CFR § 404.1527 (1981). Appellant claimed that her muscle spasms alone caused disabling pain. Although pain caused by clinically proven multiple impairments can be the disabling illness, Allen v. Califano, supra at 145, (citing Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383 (6th Cir.1978) and Noe v. Weinberger, 512 F.2d 588 (6th Cir.1975)), tolerance of pain is a highly individual matter and a determination of disability based on pain by necessity depends largely on the credibility of the claimant. Since the A.L. J. had the opportunity to observe the demeanor of the appellant, his conclusions with respect to credibility “should not be discarded lightly”. Beavers v. Secretary of Health, Education and Welfare, supra at 387. The A.L.J. noted that plaintiff did not appear preoccupied with personal" }, { "docid": "22116421", "title": "", "text": "made a factual finding that Duncan’s subjective complaints were not supported by the objective medical evidence. Duncan argues that with respect to his subjective complaints of pain this finding is not supported by substantial evidence. As support for his contention, Duncan asserts that the AU failed to apply the proper standard in considering his allegations of disabling pain. This court has previously held that subjective complaints of pain may support a claim of disability. Glass v. Secretary of Health, Education & Welfare, 517 F.2d 224, 225 (6th Cir.1975); see also Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 386 (6th Cir.1978). We have also recognized that determinations of credibility related to subjective complaints of pain rest with the AU and that “the AU’s opportunity to observe the demeanor of the claimant 'is invaluable, and should not be discarded lightly.’ ” Kirk, 667 F.2d at 538, quoting Beavers, 577 F.2d at 387. Claims of disability due to pain have been decided on a case by case basis with these general principles in mind. However, when Congress enacted the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794, it established a new statutory standard for evaluating subjective complaints of disabling pain. Section 3(a)(1) of the Act, presently codified at 42 U.S.C. § 423(d)(5)(A), provides as follows: An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective" }, { "docid": "23235593", "title": "", "text": "fruitless treatment for severe headaches and leg and back pain.” Beavers, 577 F.2d at 386. In light of this uncontradicted and overwhelming medical and lay evidence of appellant’s severe back pain, we decline to give substantial deference to the ALJ’s unexplained credibility finding. It was error for the AU, without any substantial support, to find appellant not disabled. See Marshall v. Heckler, 731 F.2d 555 (8th Cir.1984) (despite AU’s findings that complaints of pain were incredible, court reversed because of uncontradicted medical evidence of impairments leading to pain). We hold on this record that there is but one reasonable conclusion: that due to severe and constant back pain, resulting from two laminectomies and degenerative disc disease, for which he has been receiving treatment providing only temporary relief for almost ten years, and which has caused substantial restriction of movement and curtailment of regular activities, appellant lacks the residual functional capacity to perform any substantial gainful activity. He therefore is disabled. The judgment is reversed and the case is remanded to the district court with instructions to remand to the Secretary for an award of benefits. Reversed and remanded. . The ALJ actually wrote that appellant’s impairment did not \"equal\" the condition of Listing 1.05(C), but it is clear from the context that he was evaluating appellant’s claim that his impairment \"met\" the condition of Listing 1.05(C). Neither the ALJ nor the district court actually reached the issue of whether appellant’s impairment was equivalent to the 1.05(C) condition. . In Marcus v. Califano, supra, as well as in Kirk and Beavers, there was conflicting medical evidence which cried out for resolution by the ALJ, a process that would necessitate credibility determinations. In a case in which the medical evidence is entirely consistent, as here, the importance of credibility findings is substantially decreased. Furthermore, this Court recently has indicated that an AU, in making a finding on the issue of pain, may not rely solely on the demeanor of the applicant as observed by the ALJ at the hearing. Martin v. Secretary of Health and Human Services, 735 F.2d 1008, 1010 (6th" }, { "docid": "7825859", "title": "", "text": "functional capacity in light of any manual impairment. Pain In his motion papers Maisch also contends that the AU failed to give appropriate weight to Maisch’s subjective claims of pain. It is well established that “subjective pain may serve as the basis for establishing disability, even if such pain in unaccompanied by positive clinical findings or other ‘objective’ medical evidence.” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979) (emphasis and citations omitted); Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir.1981). It is within the discretion of the AU to evaluate the credibility of a claimant and to arrive at an independent judgment in light of medical findings and other evidence regarding the true extent of pain felt by the claimant. Marcus v. Califano, supra, 615 F.2d at 28; Bolton v. Secretary of Health and Human Services, 504 F.Supp. 288, 291 (E.D.N.Y.1980). However, a claimant’s subjective evidence of pain may not be disregarded solely because there is no objective evidence supporting his complaints. Furthermore, where medical evidence establishes a physical basis for the claimants’ subjective complaints, the AU’s right to make a credibility determination cannot of itself insulate his decision for review. See Ghazibayat v. Schweiker, 554 F.Supp. 1005, 1010-1011 (S.D.N.Y. 1983). In his decision, the AU stated that he carefully considered Maisch’s allegations of severe pain and found that prior to March 2, 1972 Maisch’s pain was not so severe, constant or intractable so as to preclude the performance of sedentary work. He noted that Drs. Jaffe, Puglisi, Goodman and Massoff all considered Maisch’s allegation of pain when they concluded that he was not severely disabled or incapable of performing sedentary work. He also noted that at the first hearing Maisch testified that he was capable of doing some light housework, taking care of his personal needs, and partaking in some recreation. Finally, the AU stated that he “carefully observed the claimant during the course of the first hearing and he did not appear in pain.” I find that the AU’s evaluation of Maisch’s subjective evidence of pain was sufficient to uphold his determination that the pain was not" }, { "docid": "23288419", "title": "", "text": "In May 1980, Dr. Chinn noted plaintiff was very obese, but failed to lose weight. And in July 1980, Dr. Kinner-ry noted that plaintiff weighed 290 pounds. Further, although plaintiff showed some lung impairment, and in fact was receiving black lung benefits, a number of doctors attributed his pulmonary problems to his smoking habit. There is evidence that he had smoked one to two packs a day for twenty-five years. Finally, in August 1980, Dr. Shah noted plaintiffs failure to take his blood pressure and diuretic medication for the previous six to eight months. In addition to the copious medical evidence supporting the Secretary’s decision, the AU’s own observations support a finding of no disability. Certainly an AU should not substitute his own observations for professional medical opinion of record. See, e.g., Lewis v. Califano, 616 F.2d 73, 76-77 (3d Cir.1980). Nor should he use an arbitrary “sit and squirm” index, which might place an undue emphasis upon claimant’s ability to communicate the severity of his condition through non-verbal means. See Aubeuf v. Schweiker, 649 F.2d 107, 113 (2d Cir.1981). The AU, however, should not ignore his own observations concerning the demeanor and actions of a disability claimant. “Since credibility, especially with alleged pain, is crucial to resolution of the claim, the AU’s opportunity to observe the demeanor ‘is invaluable, and should not be discarded lightly.’ ” Kirk v. Secretary, 667 F.2d 524, 538 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983), quoting Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978); see also Houston v. Secretary, 736 F.2d 365, 367 (6th Cir.1984). This is especially true in situations when conflicting medical evidence exists concerning the severity of the claim of pain by Harris. See Gist v. Secretary, 736 F.2d 352, 358 (6th Cir.1984). Here there were indications of record that plaintiff attempted to make his problems appear worse by making poor efforts during his physicians’ examinations. In February 1978, Dr. Krumholz recommended repeat lung tests because “the patient effort is quite poor.” And in April 1980, Dr. Chinn" }, { "docid": "21718493", "title": "", "text": "Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 386 (6th Cir.1978). In this situation, the “final decision of the Secretary,” to which we owe statutorily-mandated deference, see 42 U.S.C. § 405(g), is the decision of the Appeals Council. See Beavers, 577 F.2d 386. . Social Security regulations, issued in August, 1980, provide that: We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effect of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce those symptoms. 20 C.F.R. § 404.1529 (1984). . The legislative history of section 3 notes with concern that, despite the federal regulations, ALJs and federal courts have continued to give heavy weight to subjective evidence of pain even without objective evidence of the type required by the regulation. See S.Rep. No. 466 at 23; H.R.Rep. No. 618, 98th Cong., 2d Sess. 13 (1984); 130 Cong.Rec. SI 1,457 (daily ed. Sept. 19, 1984) (statement of Sen. Long). . This law effectively obsoletes this court’s prior standard for considering subjective evidence of a claimant's pain, as expressed in decisions such as Boyd, 704 F.2d 1207; Simpson, 691 F.2d 966; Smith, 646 F.2d 1075; and Gaultney, 505 F.2d 943. . Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983). . We emphasize that the new statutory standard for evaluation of pain does not provide license to the Secretary to deny disability claims where medical evidence in the record clearly indicates the existence of a medical impairment which could reasonably be expected to produce disabling pain. In this situation, the fact finder must evaluate the credibility of claimant’s testimony as to pain, and must express a" }, { "docid": "23235594", "title": "", "text": "to remand to the Secretary for an award of benefits. Reversed and remanded. . The ALJ actually wrote that appellant’s impairment did not \"equal\" the condition of Listing 1.05(C), but it is clear from the context that he was evaluating appellant’s claim that his impairment \"met\" the condition of Listing 1.05(C). Neither the ALJ nor the district court actually reached the issue of whether appellant’s impairment was equivalent to the 1.05(C) condition. . In Marcus v. Califano, supra, as well as in Kirk and Beavers, there was conflicting medical evidence which cried out for resolution by the ALJ, a process that would necessitate credibility determinations. In a case in which the medical evidence is entirely consistent, as here, the importance of credibility findings is substantially decreased. Furthermore, this Court recently has indicated that an AU, in making a finding on the issue of pain, may not rely solely on the demeanor of the applicant as observed by the ALJ at the hearing. Martin v. Secretary of Health and Human Services, 735 F.2d 1008, 1010 (6th Cir.1984); Weaver v. Secretary of Health and Human Services, 722 F.2d 310, 312 (6th Cir.1984). It follows that, where all the medical evidence consistently supports the applicant’s complaint of severe back pain, as here, the ALJ’s observation of the applicant at the hearing will not provide the underpinning for denial of Social Security benefits. . For example, the evidence of appellant’s work history, which shows a return to work after his 1978 fall despite his continued pain, does not readily support an inference that appellant is a malingerer. . The Secretary argues that appellant’s pain is purely an exertional impairment, thus justifying the conclusion that appellant is capable of sedentary work. Even if we were to accept the premise, we think it ludicrous, in light of the minimal amount of exertion required to cause the pain, to think of hanging our hats on that distinction. WELLFORD, Circuit Judge, dissenting. I believe the AU had substantial evidence to support a finding that plaintiff is not disabled due to pain alone. The AU specifically found that, while" } ]

[ { "docid": "5340617", "title": "", "text": "the third party uses and registrations introduced by Bar-Well suggested that Seabrook’s design was not “unique in the field of food products.” The board also concluded that Seabrook had not proved that Bar-Well adopted its (Bar-Well’s) design “with an intent to trade upon the goodwill of opposer.” OPINION The threshold question is whether the design portion of Seabrook’s mark functions independently of the word portion of the mark in identifying and distinguishing the goods of Seabrook from those of others. The board did not comment on whether it considered Seabrook’s design inherently distinctive, although, from its decision to dismiss the opposition, it evidently was not persuaded that the design makes such an impression on consumers that they will assume Seabrook to be the source of the goods upon seeing a similar design on identical or closely related goods. In determining whether a design is arbitrary or distinctive this court has looked to whether it was a “common” basic shape or design, whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. On the evidence of record, we are persuaded that Seabrook’s design is more akin to the decorative panel in E. J. Brack & Sons, supra note 7, which served as background for the word portion of the mark and was held to be “not itself distinctive,” than to the label in Swift & Co., supra note 7, which this court held to be “an unmistakable, certain, and primary means of identification pointing distinctly to the commercial origin of such product.” We note Bar-Well’s evidence of third-party uses and registrations of similar marks on frozen foods, indicating that Seabrook’s “oval” design is not unique in this field. Particularly noteworthy are the High Liner and Acme-Ideal marks in actual use on frozen fish and frozen vegetables, respectively. To frame the word portion, the composite" } ]

[ { "docid": "10158606", "title": "", "text": "Generic words or phrases may never serve as trademarks; descriptive marks, while not inherently distinctive, may be trademarks upon a showing of secondary meaning; and suggestive, arbitrary and fanciful terms are inherently distinctive trademarks even without a showing of secondary meaning. Yet, as we observed in Knitwaves, it does not “make sense” to apply the Aber crombie test directly to product design or configuration cases. Knitwaves, 71 F.3d at 1007. We agreed with the Third Circuit that, in contrast to verbal marks, one cannot meaningfully ask whether a product’s design features are generic or otherwise descriptive of the product itself, but we declined to follow that circuit’s application of a wholly-new, multi-pronged test to product design and configuration cases under § 43(a). Id. at 1009 n. 6 (discussing Duraco Prods., Inc. v. Joy Plastic Enters., Ltd., 40 F.3d 1431 (3d Cir.1994)). Instead, we simply asked whether the design was likely to be understood as an indicator of the product’s source. Knit-waves, 71 F.3d at 1008. The autumnal pattern on the front of plaintiff Knitwaves’s sweaters was not indicative of source, and, thus, did not warrant protection as trade dress under federal law. We drew this requirement from “what [the Court] called, in Qualitex, ‘the more important part of the statutory definition of a trademark’ — the requirement ‘that a person “us[e]” or “inten[d] to use” the mark “to identify and distinguish his or her goods ... from those manufactured or sold by others and to indicate the source of the goods.” ’ ” Id. (quoting Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, -, 115 S.Ct. 1300, 1303, 131 L.Ed.2d 248 (1995) (quoting 15 U.S.C. § 1127)). Very recently, we distinguished Knitwaves and held that the Abercrombie test will still be applied to measure the distinctiveness of a product’s packaging in trade dress cases under the Lanham Act. Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 1000-01 (2d Cir.1997), concerned the intentional copying of several aspects of a box used to contain and display the “Toilet Bank,” a novelty coin bank, by the manufacturer of a similar" }, { "docid": "23177481", "title": "", "text": "F.2d 4, 9 (2d Cir.1976). See Paddington Corp. v. Attiki Importers & Distrib., Inc., 996 F.2d 577, 583 (2d Cir.1993) (adopting Judge Friendly’s test to evaluate the inherent distinctiveness of product packaging). Within this framework, trade dress is classified on a spectrum of increasing distinctiveness as generic, descriptive, suggestive, or arbitrary/fanciful. Suggestive and arbitrary or fanciful trade dress 'are deemed inherently distinctive and thus always satisfy the first prong of the test for protection. Two Pesos, 505 U.S. at 768, 112 S.Ct. at 2757. A descriptive trade dress may be found inherently distinctive if the plaintiff establishes that its mark has acquired secondary meaning giving it distinctiveness to the consumer. Two Pesos, 505 U.S. at 769, 112 S.Ct. at 2757-58. A generic trade dress receives no Lanham Act protection. Id. at 768, 112 S.Ct. at 2757. The Supreme Court has emphasized that an inherently distinctive trade dress is one whose “intrinsic nature serves to identify a particular source of a product,” id., although it may not yet have widespread identification among consumers. Id. at 771, 112 S.Ct. at 2758-59. Consumers generally rely on packaging for information about the product and its source. But the varieties of labels and packaging available to wholesalers and manufacturers are virtually unlimited. As a consequence, a product’s trade dress typically will be arbitrary or fanciful and meet the inherently distinctive requirement for § 43(a) protection. Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1069 (2d Cir.1995); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 703 (5th Cir.1981). Yet trade dress protection has limits. A trade dress that consists of the shape of a product that conforms to a well-established industry custom is generic and hence unprotected. For example, the cosmetics industry’s common use of black, rectangular-shaped compacts renders that packaging generic. Mana, 65 F.3d at 1070; see also Paddington, 996 F.2d at 583 (soda industry practice would render green cans generic for the purpose of packaging lime-flavored soda). In short, despite the broad opportunity to design an arbitrary or fanciful trade dress, a specific trade dress must still be" }, { "docid": "17012500", "title": "", "text": "court considered the factors enunciated by this Court in Brooks Shoe Manufacturing Co. v. Suave Shoe Corporation, where we stated that a court should examine the trade dress and consider, among other factors: whether it [is] a “common” basic shape or design, whether it [is] unique or unusual in a particular field, [and] whether it [is] a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.... Unlike the “V” or “7” in Brooks, the Klondike trade dress is not a basic shape or common design. Rather, as the district court found, the Klondike wrapper with its square size, bright coloring, pebbled texture, polar bear and sunburst images, and distinctive style of printing is “a complex composite of size, color, texture and graphics.... [creating] a distinctive visual impression”. The court, hewing close to the language in Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., noted that the wrapper includes features that are “arbitrary and serve no function either to describe the product or assist in its effective packaging”, and found the wrapper trade dress inherently distinctive. Kraft challenges this finding on two grounds. It first argues that the silver foil, the color royal blue, and the arctic sun and polar bear images all connote cold and are therefore not inherently distinctive when used in connection with ice cream novelties. Kraft also argues that third parties have used these same elements in connection with their packaging of ice cream products and frozen dessertá. Kraft asserts that when viewed in context of the Brooks factors, these third party uses indicate that the Klondike trade dress is not unique and is a mere refinement of a commonly-adopted form of ornamentation for ice cream products. The district court rejected both of these arguments. That ruling was not clearly erroneous. Trademarks and trade dress may be classified as generic, descriptive, suggestive, or arbitrary. Once conceived as distinct categories, these rubrics are now commonly viewed as “central tones in a spectrum”. Within this spectrum, the distinctiveness of a" }, { "docid": "8339570", "title": "", "text": "a trade dress is inherently distinctive if its features are “arbitrary and serve no function either to describe the product or assist in its effective packaging.” Chevron, 659 F.2d at 702. A trade dress that either refers to the genus of which the particular product is a species or that is merely descriptive does not qualify as being inherently distinctive. See Two Pesos, — U.S. at -, 112 S.Ct. at 2757. In fact, generic marks are never protectable under the Lanham Act and descriptive marks must have acquired secondary meaning to become distinctive and thereby satisfy the first prong of the Two Pesos test. See Two Pesos, at ---, 112 S.Ct. at 2757-58; The Paddington Corp., at 583. Nevertheless, given that a court’s analysis must focus on the “total impression that the dress gives to the observer,” a trade dress may still be inherently distinctive despite its incorporation of.generic or descriptive elements. The Paddington Corp., at 584. Other factors that have been deemed helpful in determining inherent distinctiveness include: whether [plaintiffs trade dress] is a common basic shape or design, whether it is unique or unusual in a particular field, and whether it is a mere refinement of a commonly adopted and well-known form of ornamentation for the particular class of goods viewed by the public as a dress or ornamentation for the goods. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986). Plaintiffs trade dress is not inherently distinctive. Most of the product features claimed by plaintiff to identify its Nor-fins — the pointed ears, puggish nose, pot belly, big eyes, proportion of the body to the head, furrowed brow, wild hair, out-stretched arms, and four-digit fingers, see supra at 133 — have been elements of the public domain doll for 25 years. As for the remaining element of plaintiffs trade dress — the dis tractive clothing — plaintiff admitted to copying this market concept of selling a group or family of dressed dolls from the Smurf line of children’s dolls. EFS I, 1991 WL 275647 at 5, 1991 U.S.Dist. LEXIS 18203 at 11; Record at 55-56." }, { "docid": "10448992", "title": "", "text": "no function to either describe the product, or 3) assist in its effective packaging. In our case, the purely arbitrary features of the Wheel Magic trade dress are the green color of the liquid, cap, and label; the clear plastic of the bottle and its actual shape; and the size of the lettering. The use of a spray bottle itself is purely functional, although not its shape. The use of the high tech grid is descriptive of the advanced high tech nature of the product. The pictures of the wheels are descriptive of the purpose of the product. Finally, the use of the hang tag is predominantly functional, as the testimony indicated that its purpose was to set forth all the additional information about Wheel Magic that did not fit on the label. Thus, under the Chevron test, because some of the elements of the trade dress are nonarbitrary and functional, it would appear that the Wheel Magic trade dress is unprotectable absent secondary meaning. The Seabrook Test The Eleventh Circuit has recently used a test which originated from the United States Court of Customs and Patent Appeals to identify whether a trade dress is “inherently distinctive.” See, e.g., Am-BRIT, Inc. v. Kraft, Inc., 805 F.2d 974, 979 (11th Cir.1986), review denied, — U.S. -, 107 S.Ct. 1983, 95 L.Ed.2d 822 (1987); Brooks Shoe Manufacturing Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir. 1983). In Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977), the court set forth the key factors to consider when determining whether a design for a trademark is inherently distinctive. Seabrook indicated we should decide whether it was a “common” basic shape or design, whether it was unique or unusual in a particular field, or whether it was a mere refinement of commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods. Seabrook, 568 F.2d at 1344. Before applying this test to the evidence presented to the Court, we must decide to which “particular field” or" }, { "docid": "22294903", "title": "", "text": "court considered the factors enunciated by this Court in Brooks Shoe Manufacturing Co. v. Suave Shoe Corporation, where we stated that a court should examine the trade dress and consider, among other factors: whether it [is] a “common” basic shape or design, whether it [is] unique or unusual in a particular field, [and] whether it [is] a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods____ Unlike the “V” or “7” in Brooks, the Klondike trade dress is not a basic shape or common design. Rather, as the district court found, the Klondike wrapper with its square size, bright coloring, pebbled texture, polar bear and sunburst images, and distinctive style of printing is “a complex composite of size, color, texture and graphics____ [creating] a distinctive visual impression”. The court, hewing close to the language in Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., noted that the wrapper includes features that are “arbitrary and serve no function either to describe the product or assist in its effective packaging”, and found the wrapper trade dress inherently distinctive. Kraft challenges this finding on two grounds. It first argues that the silver foil, the color royal blue, and the arctic sun and polar bear images all connote cold and are therefore not inherently distinctive when used in connection with ice cream novelties. Kraft also argues that third parties have used these same elements in connection with their packaging of ice cream products and frozen desserts. Kraft asserts that when viewed in context of the Brooks factors, these third party uses indicate that the Klondike trade dress is not unique and is a mere refinement of a commonly-adopted form of ornamentation for ice cream products. The district court rejected both of these arguments. The ruling was not clearly erroneous. Trademarks and trade dress may be classified as generic, descriptive, suggestive, or arbitrary. Once conceived as distinct categories, these rubrics are now commonly viewed as “central tones in a spectrum”. Within this spectrum, the distinctiveness of a" }, { "docid": "14283270", "title": "", "text": "cannot be sustained on this basis. The Court now turns to Kidde’s second argument in support of summary judgment under Count II, which focuses on whether there is any evidence that X-IT’s packaging trade dress is inherently distinctive or has acquired secondary meaning. 3. Can X-IT Prove that Its Packaging Trade Dress Is Inherently Distinctive or Has Acquired Secondary Meaning? To satisfy the first element of a packaging trade dress claim under the Lanham Act, X-IT must show that its packaging trade dress is either (1) inherently distinctive or (2) has acquired secondary meaning. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). The Fourth Circuit has recently stated that whether a product’s trade dress is inherently distinctive “almost always involves heavily disputed facts and so is not ordinarily amenable to summary judgment.” Ashley Furniture Indus., Inc. v. Sangiacomo N.A. Ltd., 187 F.3d 363, 377 (4th Cir.1999) (citing Mana Products, Inc. v. Columbia Cosmetics Mfg., 65 F.3d 1063, 1069 (2d Cir.1995)). Nonetheless, Kidde argues that X-IT’s false designation of origin claim under Count II fails as a matter of law because X-IT’s packaging trade dress is not inherently distinctive, and because X-IT has failed to put forth any evidence that XIT’s packaging trade dress acquired secondary meaning. a. Is X-IT’s Trade Dress Inherently Distinctive? Factors that are considered in determining inherent distinctiveness include (1) whether the trade dress is a common basic shape or design; (2) whether the trade dress is unique or unusual in a particular field; and (3) whether the trade dress is a “ ‘mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for goods.’ ” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1536 (11th Cir.1986) (quoting Brooks Shoe Mfg. Co. v. Suave Shoe Corp., 716 F.2d 854, 858 (11th Cir.1983)). In evaluating these factors, the “total image” of the packaging design must be considered such that the relevant inquiry is not whether the individual components or elements of a" }, { "docid": "6474278", "title": "", "text": "a packaging trade dress case, Paddington, 996 F.2d 577, but it has not yet considered the issue in the context of a product design or configuration case. Thus, the applicability of Abercrombie in such cases remains an open question in this Circuit. The Third Circuit recently argued in Du-raco that Abercrombie does not translate especially well to trade dress cases in which the trade dress at issue is the configuration of the product, as is true here. While packaging, a common subject of trade dress protection, in some circumstances may be suggestive or otherwise inherently inform the consumer of the source of the product contained within it, as did the restaurant decor at issue in Two Pesos, the design of the fabric used in a necktie is not suggestive of the product or its source at all — in a fundamental sense it is the product itself. See 40 F.3d at 1440-41. Nor does pinning the label “arbitrary” or “fanciful” on the design necessarily assist in focusing the analysis on the concern of the Lanham Act, confusion as to source or sponsorship. See id. A product design can be arbitrary or fanciful as those terms are used in common parlance without conveying or, for that matter, having the capacity to convey any information to the consumer concerning the source of the goods. Absent such a source identifying function, Lanham Act protection for arbitrary or fanciful product configurations risks affording protection for unique designs in circumstances in which there is no justification for providing protection beyond that afforded by patent and copyright law. See id. at 1446-47. These considerations led the Third Circuit in Duraco to conclude that Lanham Act protection for product design should be narrowly confined and to reject application of Aber-crombie to the determination of inherent distinctiveness in product configuration trade dress cases. In its place, it adopted a three prong test for determining whether design is inherently distinctive: the design must be (i) unusual and memorable, (ii) conceptually separable from the product, and (iii) likely to serve primarily as a designator of origin of the product. 40" }, { "docid": "23539508", "title": "", "text": "See id. at 768-69, 112 S.Ct. 2753. The holding of Two Pesos was that plaintiffs seeking protection for inherently distinctive trade dress are not required to demonstrate secondary meaning. See id. at 770, 112 S.Ct. 2753. Unless the Court decides to carve out an exception to this rule for claims about product design, which we deem unlikely, then the holding must be honored. And so we agree with the Eighth Circuit that the test for inherent distinctiveness should not be altered to the degree that it eviscerates the distinction between inherently distinctive trade dress and trade dress that has acquired secondary meaning. We do not believe, however, that analysis of the problem using different factors than the Abercrombie factors results in such an outcome. This court has previously relied on the test set forth in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342 (C.C.P.A.1977), to determine whether a product design is inherently distinctive, and we do so again. In Wiley v. American Greetings Corp., 762 F.2d 139 (1st Cir.1985), this court stated that inherent distinctiveness of a product design should be determined by reference to whether [the design] was a “common” basic shape or design, whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 141 (alteration in original) (quoting Seabrook Foods, 568 F.2d at 1344) (internal quotation marks omitted). We also agree with one commentator’s analysis that “[i]n reality, all three [Seabrook Foods ] questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.” 1 McCarthy § 8:13. Although the plaintiff in Wiley brought suit under state common law, we find the test" }, { "docid": "12590174", "title": "", "text": "of descriptive, suggestive, arbitrary and fanciful is largely confined to word marks. It is usually not suitable for nonword designations such as shapes and images making up trade dress.”). We do not go so far as to hold that the Abercrombie test is eclipsed every time a mark other than a word is at issue. Instead, we hold that the Abercrombie test fails to illuminate the fundamental inquiry in this case: whether the Star Symbol’s “ ‘intrinsic nature serves to identify’ ” Amazing Spaces and its storage services. Wal-Mart Stores, 529 U.S. at 210, 120 S.Ct. 1339 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753). For the answer to that question, we now turn to the Seabrook Foods test employed by the district court. b. Seabrook Foods In contrast to the Abercrombie test, the Seabrook Foods test, articulated by the U.S. Court of Customs and Patent Appeals in 1977, applies expressly to marks consisting of symbols and designs: In determining whether a design is arbitrary or distinctive this court has looked to [1] whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Seabrook Foods, 568 F.2d at 1344 (footnotes omitted). The first three of the Seabrook Foods “ ‘questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.’ ” I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 40 (1st Cir.1998) (quoting 1 McCarthy on Trademarks § 8:13, at 8-58.5). As is true of the Abercrombie test, the Seabrook Foods test seeks an answer to the question whether a mark’s “ ‘intrinsic nature" }, { "docid": "20588370", "title": "", "text": "juror could therefore conclude that the phrase “Mardi Gras bead dog” “bear[s] no relationship” to Haydel’s clothing and king cake. Amazing Spaces, 608 F.3d at 241 (citation omitted). Because the record compels the conclusion that Haydel’s word mark is descriptive as applied to jewelry, clothing, and king cake, the mark is legally protect-able as a source identifier only if it has acquired secondary meaning, which we discuss below. B. Design Mark We now analyze the distinctiveness of Haydel’s design mark, which the PTO defined as “a stylized dog wearing a beaded necklace, with the dog being formed by a series of spheres designed to look like Mardi Gras style beads. The dog has two eyes and a nose, all formed by smaller beads.” While the Abercrombie test determines the inherent distinctiveness of word marks, we recently embraced the Seabrook Foods test to determine the inherent distinctiveness of a design mark, although we did not “go so far as to hold that the Abercrombie test is eclipsed every time a mark other than a word is at issue.” Amazing Spaces, 608 F.3d at 243. To assess inherent distinctiveness, the Seabrook Foods test asks: [1] whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, [3] whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or [4] whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 232 (quoting Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977)). We have noted that “[t]he first three of the Seabrook Foods ‘questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.’” Id. at 243-44 (internal quotation marks omitted) (quoting I.P. Lund Trading ApS v. Kohler Co.," }, { "docid": "12590144", "title": "", "text": "was inherently distinctive, the district court considered two tests. See id. at 735-36. The first is known as the Abercrombie test, after Judge Friendly’s opinion in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir.1976). Under this test, marks are “classified in categories of generally increasing distinctiveness ... [:] (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (citing Abercrombie, 537 F.2d at 9). The second test was articulated in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342 (C.C.P.A.1978). Under the Seabrook Foods test, courts look to a set of factors “[i]n determining whether a design is arbitrary or distinctive”: whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 1344 (footnotes omitted). After laying out the two tests, the district court proceeded to consider their application to the Star Symbol. It first determined that the Star Symbol was not generic or a common geometric shape. Amazing Spaces, 665 F.Supp.2d at 737. It then determined that the Star Symbol was not descriptive of any “characteristic or quality of self-storage service[s].” Id. For essentially the same reason, and because Amazing Spaces disclaimed any argument to the contrary, the court further concluded that the Star Symbol was not suggestive. Id. Under the Abercrombie rubric, this process of elimination left only two possibilities remaining: the Star Symbol was either arbitrary or fanciful. Both of those “categories of marks, because their intrinsic nature serves to identify a particular source of a product, are deemed inherently distinctive and are entitled to protection.” Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. However, the district court refused to reach such a" }, { "docid": "12590175", "title": "", "text": "whether it was a “common” basic shape or design, [2] whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Seabrook Foods, 568 F.2d at 1344 (footnotes omitted). The first three of the Seabrook Foods “ ‘questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.’ ” I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 40 (1st Cir.1998) (quoting 1 McCarthy on Trademarks § 8:13, at 8-58.5). As is true of the Abercrombie test, the Seabrook Foods test seeks an answer to the question whether a mark’s “ ‘intrinsic nature serves to identify a particular source.’” Wal-Mart Stores, 529 U.S. at 210, 120 S.Ct. 1339 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753); accord 1 McCarthy on Trademarks § 3:3, at 3-6 (“[A] designation must be proven to perform the job of identification: to identify one source and distinguish it from other sources. If it does not do this, then it is not protectable as a trademark, service mark, trade dress or any similar exclusive right.”). We agree with the assessment of the I.P. Lund Trading court and Professor McCarthy that the Seabrook Foods factors are variations on a theme rather than discrete inquiries. In Star Industries v. Bacardi & Co., the Second Circuit noted that “ ‘[c]ommon basic shapes’ or letters are, as a matter of law, not inherently distinctive ..., [but] stylized shapes or letters may qualify, provided the design is not commonplace but rather unique or unusual in the relevant market.” 412 F.3d 373, 382 (2d Cir.2005) (citing Seabrook Foods, 568 F.2d at 1344; Permatex Co. v. Cal. Tube Prods.," }, { "docid": "23177485", "title": "", "text": "configure a product, the variety of packaging available for a given product is limited only by the bounds of imagination. These factors render packaging more suitable than product configuration for classification under the Aber-crombie system as arbitrary or fanciful, suggestive, descriptive, or generic. Third, use of the Abercrombie test tracks the purpose of the Lanham Act to identify source. That is, it is consistent with the Supreme Court’s emphasis on a trade dress’ capacity to “identify a particular source of the product.” Two Pesos, 505 U.S. at 771, 112 S.Ct. at 2759. While a more stringent test is necessary in the product configuration context, applying Abercrombie to product packaging serves the aims of the Lanham Act because consumers are more likely to rely on the packaging of a product than on the product’s design as an indication of source. Restatement (Third) of Unfair Competition § 16 cmt. b (1995). In contrast, over-inclusive protection of the product design risks conferring benefits beyond the intended scope of the Lanham Act and entering what is properly the realm of patent law. See Fabrication Enters., Inc. v. Hygenic Corp., 64 F.3d 53, 59 n. 4 (2d Cir.1995). Thus, though the Abercrombie classifications were originally developed for analysis of word marks, we conclude that because of the endless number of product packaging options the Abercrombie test is appropriately applied in this trade dress case. B. Distinctiveness in the Instant Case Defendants insist that the Toilet Bank’s trade dress is not inherently distinctive, principally because the elements identified as part of that characterization are generic. Classification under the Abercrombie spectrum of distinctiveness is a question of fact reviewed under the clearly erroneous standard. See Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1039-40 (2d Cir.1992) (classification of trademarks). We evaluate trade dress distinctiveness by looking at all its elements and considering the total impression the trade dress gives to the observer. Paddington, 996 F.2d at 584. Coneededly, a number of individual features of the Toilet Bank’s trade dress are common in the toy industry; for example, the triangular shape of the box and its open" }, { "docid": "23539509", "title": "", "text": "inherent distinctiveness of a product design should be determined by reference to whether [the design] was a “common” basic shape or design, whether it was unique or unusual in a particular field, whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as dress or ornamentation for the goods, or whether it was capable of creating a commercial impression distinct from the accompanying words. Id. at 141 (alteration in original) (quoting Seabrook Foods, 568 F.2d at 1344) (internal quotation marks omitted). We also agree with one commentator’s analysis that “[i]n reality, all three [Seabrook Foods ] questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator of origin — a trademark.” 1 McCarthy § 8:13. Although the plaintiff in Wiley brought suit under state common law, we find the test equally applicable to claims brought under the Lanham Act. The Seabrook Foods test is largely consistent with the Second Circuit’s Knitwaves test for inherent distinctiveness, that is, whether the design “is likely to serve primarily as a designator of origin of the product.” Knit-waves, 71 F.3d at 1008 (quoting Buraco Prods., 40 F.3d at 1449) (internal quotation marks omitted); see also Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 378 n. 3 (2d Cir.1997) (rejecting an argument that the Knitwaves and Seabrook Foods tests are inconsistent). In contrast to the Second Circuit, however, we believe that T%vo Pesos obliges courts to maintain a clear distinction between the inquiry into secondary meaning and the inquiry into inherent distinctiveness. Cf. Knitwaves, 71 F.3d at 1008. Although plaintiffs seeking to demonstrate that a product design is inherently distinctive may find that their task is a difficult one, Two Pesos makes clear that this opportunity remains open. Product designs are unlike many more traditional subjects of trademark protection, “which almost automatically tell a customer that they refer" }, { "docid": "23177484", "title": "", "text": "it is one capable of creating a commercial impression separate from the accompanying words. Id. We see no reason to. abandon the Abercrombie distinctiveness spectrum in this case. Several reasons lead us to decline. First, we have expressly ruled that the Aber-crombie classifications apply to packaging. Paddington, 996 F.2d at 583. Second, Knit-waves is a pure product configuration case, separate from product packaging, the category of trade dress at issue in this case. In Knitwaves, the trade dress lay in the product itself, rather than in a symbol — a trademark or packaging — associated with the product. It was therefore difficult to define some aspect or feature of the trade dress as “descriptive” or “arbitrary” in relation to the product. See Knitwaves, 71 F.3d at 1007-08 (quoting Duraco Prods. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1440-41 (3d Cir.1994)). In contrast, a store display of a product’s packaging style creates an image of the product more readily separated from the product itself. Moreover, although there may be a finite set of ways to configure a product, the variety of packaging available for a given product is limited only by the bounds of imagination. These factors render packaging more suitable than product configuration for classification under the Aber-crombie system as arbitrary or fanciful, suggestive, descriptive, or generic. Third, use of the Abercrombie test tracks the purpose of the Lanham Act to identify source. That is, it is consistent with the Supreme Court’s emphasis on a trade dress’ capacity to “identify a particular source of the product.” Two Pesos, 505 U.S. at 771, 112 S.Ct. at 2759. While a more stringent test is necessary in the product configuration context, applying Abercrombie to product packaging serves the aims of the Lanham Act because consumers are more likely to rely on the packaging of a product than on the product’s design as an indication of source. Restatement (Third) of Unfair Competition § 16 cmt. b (1995). In contrast, over-inclusive protection of the product design risks conferring benefits beyond the intended scope of the Lanham Act and entering what is properly the realm" }, { "docid": "23177483", "title": "", "text": "evaluated to determine whether it is so distinctive as to point to a single source of origin and thereby be entitled to Lanham Act protection. Defendants urge us to adopt a more stringent standard of distinctiveness than that used by the trial court. Recently we declined to use the Abercrombie spectrum of distinctiveness in a trade dress case that involved features of the product itself. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir.1995). In an attempt to extend that rationale, defendants suggest we adopt an alternative test for inherent distinctiveness of trade dress set forth in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977). Under Seabrook, the inquiry is whether the design or shape of a package is a common, basic one, or whether it is unique or unusual in a particular field; whether the design is a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a trade dress or ornamentation for such goods, or whether it is one capable of creating a commercial impression separate from the accompanying words. Id. We see no reason to. abandon the Abercrombie distinctiveness spectrum in this case. Several reasons lead us to decline. First, we have expressly ruled that the Aber-crombie classifications apply to packaging. Paddington, 996 F.2d at 583. Second, Knit-waves is a pure product configuration case, separate from product packaging, the category of trade dress at issue in this case. In Knitwaves, the trade dress lay in the product itself, rather than in a symbol — a trademark or packaging — associated with the product. It was therefore difficult to define some aspect or feature of the trade dress as “descriptive” or “arbitrary” in relation to the product. See Knitwaves, 71 F.3d at 1007-08 (quoting Duraco Prods. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1440-41 (3d Cir.1994)). In contrast, a store display of a product’s packaging style creates an image of the product more readily separated from the product itself. Moreover, although there may be a finite set of ways to" }, { "docid": "6891607", "title": "", "text": "confusion. See, e.g., Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 169, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995); Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1005 (2d Cir.1995); Coach Leatherware Co. v. Ann-Taylor, Inc., 933 F.2d 162, 171 (2d Cir.1991). 1. Inherent Distinctiveness The Two Pesos Court held that the test-that applies to trademarks to determine whether the mark is inherently distinctive should also apply to trade dress. That test, first stated in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976), classifies trademarks for purposes of their protection in categories according to ascending degrees of inherent distinctiveness, namely “(1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or (5) fanciful.” Id.; see Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. The Second Circuit has refined the Two Pesos/Abercrombie test by distinguishing between the trade dress of products themselves (product configuration cases), and the trade dress of the product’s packaging (packaging cases). The Second Circuit has held that the Abercrombie analysis applies to packaging cases, but where the “trade dress is claimed in the configuration or design of the product itself ... the test for inherent distinction [is] whether the claimed dress is ‘likely to serve as source designator.’-” Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 378 (2d Cir.1997). It is important to understand that under this test, the product’s dress, not the product’s name, manufacturer, or concept, must be identifiable as the product’s source. The Landscape Forms court adopted this rule because it observed that the Second Circuit appeared to be moving toward a rule where the design or configuration of the product is usually not indicative of a product’s source, and pointed out that the application of the Lanham Act “must be construed in the light of a strong federal policy in favor of vigorously competitive markets,” a policy deemed consistent with both the Abercrom-bie analysis and the Second Circuit’s product configuration test. Id. at 379-80. The instant dispute concerns a product design or configuration, thus in determining whether Sports Traveler Magazine’s trade dress is" }, { "docid": "23177482", "title": "", "text": "112 S.Ct. at 2758-59. Consumers generally rely on packaging for information about the product and its source. But the varieties of labels and packaging available to wholesalers and manufacturers are virtually unlimited. As a consequence, a product’s trade dress typically will be arbitrary or fanciful and meet the inherently distinctive requirement for § 43(a) protection. Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1069 (2d Cir.1995); Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 703 (5th Cir.1981). Yet trade dress protection has limits. A trade dress that consists of the shape of a product that conforms to a well-established industry custom is generic and hence unprotected. For example, the cosmetics industry’s common use of black, rectangular-shaped compacts renders that packaging generic. Mana, 65 F.3d at 1070; see also Paddington, 996 F.2d at 583 (soda industry practice would render green cans generic for the purpose of packaging lime-flavored soda). In short, despite the broad opportunity to design an arbitrary or fanciful trade dress, a specific trade dress must still be evaluated to determine whether it is so distinctive as to point to a single source of origin and thereby be entitled to Lanham Act protection. Defendants urge us to adopt a more stringent standard of distinctiveness than that used by the trial court. Recently we declined to use the Abercrombie spectrum of distinctiveness in a trade dress case that involved features of the product itself. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir.1995). In an attempt to extend that rationale, defendants suggest we adopt an alternative test for inherent distinctiveness of trade dress set forth in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977). Under Seabrook, the inquiry is whether the design or shape of a package is a common, basic one, or whether it is unique or unusual in a particular field; whether the design is a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a trade dress or ornamentation for such goods, or whether" }, { "docid": "10158627", "title": "", "text": "is either aesthetic or source-identifying. She rightly observed that trade dress is usually meant to please. If Knitwaves forced courts to decide whether a manufacturer's purpose was to create either something of beauty or something indicative of source, we agree the task would often prove impossible. Knitwaves declined to extend trade dress protection to ornamentation on the front of sweaters where there was no reason to believe that the designs were likely to be understood as an indication of the manufacturer of the sweaters. The case turned entirely upon the lack of inherent distinctiveness of the patterns, because there was no showing that they had achieved any secondary meaning in the market for children's clothing. Because evaluation of inherent distinctiveness involves a more confined analysis than the inquiry into whether dress has gained secondary meaning, caution is needed to prevent imprudent recognition of trade dress in product features that could not plausibly be taken to indicate the manufacturer. Judge Sotomayor employed the series of questions posed in Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1344 (C.C.P.A.1977) to assess whether the design of the Matrix model of high-densily, stacking chairs is inherently distinctive. In her discussion, she indicates that the Seabrook \"test” is inconsistent with Knitwaves. We disagree. The questions posed in Seabrook were \"whether [the design] was a ‘common’ basic shape or design, whether it was unique or unusual in a particular field, [or] whether it was a mere refinement of a commonlyadopted and well-known form of ornamentation for a particular class of goods” which consumers view as such. Id. These questions may, in different contexts, be useful tools to assess whether a design is “likely to be perceived as a source indicator,” See 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition §§ 8-13 (4th ed. 1996) (\"In reality, all three [of the Seabrook] questions are merely different ways to ask whether the design, shape or combination of elements is so unique, unusual or unexpected in this market that one can assume without proof that it will automatically be perceived by customers as an indicator" } ]

[ { "docid": "16679950", "title": "", "text": "clearly established. Thus, the only issue that remains concerns Tolliver’s entitlement to the position of assistant superintendent in the Harlan County Schools. This is a pendent state law claim which the court retained after the federal claims were dismissed. 28 U.S.C. § 1367. On November 28, 1994, the Harlan County Board of Education, which had since resumed governance of the District, filed a motion for summary judgment addressing this issue. III. Analysis A. The School Board is not entitled to Eleventh Amendment Immunity. The School Board argues that Tolliver’s claims are barred by the Eleventh Amendment. The Eleventh Amendment provides that: It bars a suit for damages against a state in federal court unless the state waives its immunity. See e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974). Eleventh Amendment immunity extends to state agencies that act as arms of the state, but does not extend to cities, counties, or other political subdivisions of the state. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Thus, the issue is whether the Harlan County School Board is an arm of the state. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any foreign State. In Blackburn v. Floyd County Bd. of Educ., 749 F.Supp. 159 (E.D.Ky.1990), Judge Hood reviewed recent developments in Kentucky law and concluded that “Kentucky local boards of education are not arms .of the state and, thus, they are not entitled to Eleventh Amendment immunity.” Id., 749 F.Supp. at 163. The School Board argues, however, that Blackburn is outdated due to recent enactments by the Kentucky legislature. It argues that the passage of the Kentucky Education Reform Act (KERA) on July 13, 1990, expanded state control of local boards of education. However, KERA attempts to decentralize much of the decisionmaking processes. See Board of Educ." } ]

[ { "docid": "15483956", "title": "", "text": "judgment in favor of Peters and Epperson might well be in order, but concluded that under the circumstances the Eleventh Amendment precluded the entry of a money judgment against the local school board members, acting in their official capacity as members of the school board for School District No. 480. In thus holding the trial court in our view committed error. We do not deem the Eleventh Amendment to be applicable to District No. 480. The Eleventh Amendment reads as follows: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. It is well established that under the Eleventh Amendment a non-consenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and the eases cited therein at page 663, 94 S.Ct. 1347. Furthermore, a suit in a federal court against the members of a state board or agency acting in their official capacities is a suit against the board or agency itself, and subject to the immunity afforded by the Eleventh Amendment. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347 (1945). In determining in a given case whether a board or agency is an arm or alter ego of the state and therefore in reality the state within the meaning of the Eleventh Amendment, the powers, nature, and characteristics of the board or agency must be critically examined under state law. Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir. 1975). Two primary tests for distinguishing alter egos, enjoying the state’s Eleventh Amendment immunity, from so-called political subdivisions, such as counties and municipalities, which do not enjoy such immunity are: (1) To what extent does the board, although carrying out a state mission, function with substantial autonomy from the state government and," }, { "docid": "13317273", "title": "", "text": "HOOD, District Judge. This matter is before the court on the defendants’ motion for summary judgment against the civil rights complaint of the plaintiff, Joyce Reynolds Blackburn [Blackburn]. They have objected to the Report and Recommendation of the United States Magistrate recommending that the motion be denied. [Record No. 33]. The parties have also filed supplemental briefs addressing recent case law developments and their potential effect on this case. The court has reviewed de novo the record as developed. Blackburn brought this action under 42 U.S.C. § 1983 alleging that her First Amendment right of free expression was violated by the defendants’ refusal to rehire her as a teacher in the Floyd County, Kentucky school system. The defendants are the Floyd County Board of Education, through its board members [Board], and Floyd County Schools Superintendent Ronald Hager [Hager]. The defendants’ motion for summary judgment presents two primary arguments which are also reflected in a number of similar § 1983 actions against Kentucky school boards and superintendents: (1) is a local board of education in Kentucky a state agency or “arm of the state” entitled to immunity from suit under the Eleventh Amendment to the United States Constitution; and (2) does the complaint allege acts by Hager outside of his “official” capacity to sufficiently support an “individual” capacity claim for relief. The defendants object to the Magistrate’s conclusion against them on both of these grounds. The court will first consider the Board’s Eleventh Amendment argument. The Magistrate concluded that, although there is oversight by the state, a local school board in Kentucky retains substantial control over the operation of its district. Thus, local school boards in Kentucky are not merely state agencies. In reaching this result, the Magistrate adopted the same analysis and conclusion reached in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977), and Cunningham v. Grayson, 541 F.2d 538, 543 (6th Cir.1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 812, 50 L.Ed.2d 792 (1977). Cunningham specifically involved Kentucky schools. The Board continues to argue that “tumultuous” developments" }, { "docid": "16679949", "title": "", "text": "1991 meeting were approved by the School Board at its December 16,1991 meeting. On May 7,1992, the Harlan County Grand Jury returned an indictment against Tolliver, charging her with theft-related crimes involving purported misuse of school system monies. The State Board of Education, which was at that time operating the District, voted to relieve Tolliver of her duties as acting superintendent and to return her to her previous position as Director of Special Education. Tolliver was notified of her removal, effective immediately, by letter dated May 7, 1992. The Harlan County Commonwealth Attorney filed a motion to dismiss the charges against her on March 9,1993; the indictment was quashed June 30, 1993. Tolliver filed the present action on May 5, 1993. On September 30,1994, a hearing was held on the motion by the members of the State Board for summary judgment. The court granted the motion and held that the individual defendants were entitled to qualified immunity on the ground that the law concerning suspensions with pay of a public employee under indictment was not clearly established. Thus, the only issue that remains concerns Tolliver’s entitlement to the position of assistant superintendent in the Harlan County Schools. This is a pendent state law claim which the court retained after the federal claims were dismissed. 28 U.S.C. § 1367. On November 28, 1994, the Harlan County Board of Education, which had since resumed governance of the District, filed a motion for summary judgment addressing this issue. III. Analysis A. The School Board is not entitled to Eleventh Amendment Immunity. The School Board argues that Tolliver’s claims are barred by the Eleventh Amendment. The Eleventh Amendment provides that: It bars a suit for damages against a state in federal court unless the state waives its immunity. See e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974). Eleventh Amendment immunity extends to state agencies that act as arms of the state, but does not extend to cities, counties, or other political subdivisions of the state. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle," }, { "docid": "9583178", "title": "", "text": "constraint upon the power of the federal judiciary, provides that “[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The Eleventh Amendment also bars suit against an uneonsenting state by its own citizens, although such a result is not mandated by the Amendment’s express language. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). The immunity afforded by the Eleventh Amendment also extends to state agencies and officials, when a suit against them seeks monetary damages that would be paid from the state treasury: [W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officers are nominal defendants. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). It is well-established, however, that political subdivisions are not arms of the state, and are not entitled to immunity under the Eleventh Amendment. Beardsley v. Webb, 30 F.3d 524, 532 (4th Cir.1994) (quoting Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979)). Smyth County relies upon the Fourth Circuit’s opinion in Bockes v. Fields, 999 F.2d 788 (4th Cir.1993), cert. denied, 510 U.S. 1092, 114 S.Ct. 922, 127 L.Ed.2d 216 (1994), for the general proposition that a county’s participation in a state sponsored risk management program operates to extend the immunity a state enjoys under the Eleventh Amendment to the participating county. Smyth County presses Boches too far. As the district judge in Boches later explained in Roberson v. Mullins, 876 F.Supp. 100 (W.D.Va.1995), the court in Boches was faced with the classification, for Eleventh Amendment purposes, of an entity not clearly either a state or local actor but one" }, { "docid": "948169", "title": "", "text": "Rahe, Aaron and Hogan. Sixth, the conspiracy cause of action must be dismissed. Seventh, the section 1983 claims against the individual defendants must be dismissed. Eighth, defendant Hogan is entitled to dismissal as no factual allegation was made against him in the complaint. Ninth, individual defendants are entitled to qualified immunity from damages for alleged violations of the Constitution. The court addresses each claim separately. II. LAW A motion to dismiss may only be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Ang v. Procter and Gamble Co., 932 F.2d 540 (6th Cir.1991). A. A State Agency Is Entitled To Immunity From Suit Under Sections 1983 And 1985 By The Eleventh Amendment. The Eleventh Amendment bars suits against a state by its own citizens. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). When an action is brought against a public agency or institution, and/or officials thereof, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated as a political subdivision of the state. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572-73, 50 L.Ed.2d 471 (1977). Municipalities, counties and other political subdivisions are not covered by the state’s Eleventh Amendment immunity. Id. Therefore, the question here is whether CPI can be considered an “arm” or “alter ego” of the State of Ohio, entitled to the immunity afforded by the Eleventh Amendment, or whether it is merely a political subdivision which enjoys no siich immunity. In answering this question, the Sixth Circuit employs a nine-point analysis: (1) local law and decision defining the status and nature of the agency involved and its relation to the sovereign; (2) will the payment of judgment have to be made out of the state treasury; (3) whether the agency has the funds or the power to satisfy the judgment; (4) whether the agency" }, { "docid": "19651118", "title": "", "text": "found it unnecessary to decide whether the Board was entitled to immunity from suit in the federal courts under the Eleventh Amendment, because it decided that any such immunity had been waived by Ohio, statute and decisional law. In view of the treatment of waiver by a State of its Eleventh Amendment immunity from suit in Ford Motor Co. v. Dept. of Treasury, 323 U. S. 459, 464-466 (1945), we are less sure than was the District Court that Ohio had consented to suit against entities such as the Board in the federal courts. We prefer to address instead the question of whether such an entity had any Eleventh Amendment immunity in the first place, since if we conclude that it had none it will be unnecessary to reach the question of waiver. The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances, Edelman v. Jordan, 415 U. S. 651 (1974); Ford Motor Co. v. Dept. of Treasury, supra, but does not extend to counties and similar municipal corporations. See Lincoln County v. Luning, 133 U. S. 529, 530 (1890); Moor v. County of Alameda, 411 U. S. 693, 717-721 (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends, at least in part, upon the nature of the entity created by state law. Under Ohio law the “State” does not include “political subdivisions,” and “political subdivisions” do include local' school districts. Ohio Rev. Code Ann. § 2743.01 (Page Supp. 1975). Petitioner is but one of many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education, Ohio Rev. Code Ann. § 3301.07 (Page 1972 and Supp. 1975), and receives a significant amount of money from the State. Ohio Rev. Code Ann. § 3317" }, { "docid": "13410200", "title": "", "text": "damages against a state in federal court. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). Although Congress did not abrogate state Eleventh Amendment immunity when enacting § 1983, Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358.(1979), that immunity extends only to the states themselves and to those governmental entities that are “arms of the state.” Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.1988). Thus, unless Utah school districts are properly considered “arms of the state,” they are amenable to suits for damages in federal court under § 1983. If the Eleventh Amendment applies, it confers total immunity from suit, not merely a defense to liability. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., — U.S. -,-, 113 S.Ct. 684, 688-89, 121 L.Ed.2d 605 (1993). The principal development since Harris affecting Eleventh Amendment jurisprudence in this area is the Supreme Court’s decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), involving an Ohio school district board. There, the Court held that “[t]he answer [to a school board’s entitlement to immunity] depends, at least in-part, upon the nature of the entity created by state law.” Id. at 280, 97 S.Ct. at 572. The Court ruled four factors to be relevant: (1) the characterization of the district under state law; (2) the guidance and control exercised by the state over the local school board; (3) the degree of state funding received by the district; and (4) the local board’s ability to issue bonds and levy taxes on its own behalf. Id. The Court held that “[o]n balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State.” Id. Therefore, the school board was not entitled to Eleventh Amendment immunity. We must apply the Mt. Healthy analysis to the Utah school board’s immunity claim. We believe that the immunity issue must be determined in each" }, { "docid": "13317278", "title": "", "text": "agency has the funds or the power to satisfy the judgment. Other relevant factors are whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; the degree of autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation, and whether the sovereign has immunized itself from responsibility for the agency’s operations. Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 302 (6th Cir.1984) (quoting Blake v. Kline, 612 F.2d 718, 722 (3rd Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980)). The Hall court noted, albeit in dictum, that “[mjunicipalities, counties and other political subdivisions (e.g. public school districts ) do not partake of the state’s Eleventh Amendment immunity.” 742 F.2d at 301 (emphasis added). Some of the Hall factors were referenced in the Cunningham court’s finding that the Jefferson County, Kentucky Board of Education [JCBE] was not the “state” or its alter ego. “JCBE, ‘a body politic and corporate with perpetual succession,’ inter alia may sue and be sued, contract, purchase, receive, hold and sell property, and issue bonds, establish curriculum and employment standards, and, most importantly, levy school taxes through the county fiscal court.” Cunningham, 541 F.2d at 543. Kentucky schools continue to retain these powers. Nonetheless, the Board argues that the broader factors reflected in Hall, combined with recent Kentucky school law developments, yield a different conclusion. In its argument, the Board relies primarily on two factors from the Hall analysis— the degree of local autonomy and the extent to which the local board is independently financed. These elements were focused upon in the only two cases cited by the defendants as holding local school boards to be protected by Eleventh Amendment immunity. Martinez v. Board of Education of Taos Mun. School Dist., 748 F.2d 1393 (10th Cir.1984) (New Mexico schools); Martinez v. Board of Education of Emery County School Dist., 724 F.Supp. 857 (D.Utah 1989) (Utah schools). The Board attempts to parallel these systems to the Kentucky" }, { "docid": "23395326", "title": "", "text": "alter ego of the State of Ohio, and that suit against the school and its officers is barred by the Eleventh Amendment to the United States Constitution, which provides as follows: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. With respect to the school personnel, the court held that they had a complete defense of qualified immunity from personal liability for damages for acts performed within the scope of their official duties. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The court then entered judgment dismissing Hall's entire complaint, including his claim for reinstatement. The appeal has been heard by this Court on the briefs, appendices and arguments of counsel. For the reasons stated, we affirm the judgment of the District Court. I Eleventh Amendment A A suit by a private party which, for past acts or omissions, seeks to impose legal or equitable liability payable from state funds, is barred in a federal court by the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This is so even when only individual state officials are the nominal defendants but the state is the real, substantial party in interest. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). When an action is brought against a public agency or institution, and/or the officials thereof, the application of the Eleventh Amendment turns on whether said agency or institution can be characterized as an arm or alter ego of the state, or whether it should be treated instead as a political subdivision of the state. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Municipalities, counties and other political subdivisions (e.g., public school districts) do not partake of the state’s Eleventh Amendment immunity. Id.;" }, { "docid": "15483959", "title": "", "text": "not have the benefit of, is most helpful in determining whether the members of the school board for District No. 480, acting in their official capacity, are under the Eleventh Amendment immune from suits brought in the federal courts. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). There a local school board in Ohio determined not to renew a teaching contract and the teacher involved brought suit in federal court against the local board, alleging a violation of his First and Fourteenth Amendment rights, with jurisdiction being based on 28 U.S.C. § 1331 and 1343. The trial court in Mt. Healthy held that any immunity enjoyed by the local school board under the Eleventh Amendment had been waived by Ohio statute. This holding was not disturbed by the Circuit Court on appeal. On certiorari, the Supreme Court, expressing some doubt that there was a waiver, preferred to address itself to the question of whether the local school board had any Eleventh Amendment immunity in the first place. In concluding that the local school board did not enjoy Eleventh Amendment immunity, the Supreme Court spoke as follows: The bar of the Eleventh Amendment to suit in federal courts extends to states and state officials in appropriate circumstances, Edelman v. Jordan, 415 U.S. 651, [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Ford Motor Co. v. Department of Treasury, supra, but does not extend to counties and similar municipal corporations. See County of Lincoln v. Luning, 133 U.S. 529, 530, [10 S.Ct. 363, 33 L.Ed. 766] (1890); Moor v. County of Alameda, 411 U.S. 693, 717-721, [93 S.Ct. 1785, 36 L.Ed.2d 596] (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends at least in part upon the nature of the entity created by" }, { "docid": "16219821", "title": "", "text": "if the record “shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Celsius Energy Co. v. Mid America Petroleum, Inc., 894 F.2d 1238, 1239 (10th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). II Because an Eleventh Amendment defense is jurisdictional, see Garcia v. Board of Educ. of Socorro Consol. Sch. Dist., 777 F.2d 1403, 1405 (10th Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 66, 93 L.Ed.2d 24 (1986), we' begin by addressing plaintiff’s claim that the district court erred in finding the Board immune from liability under the Eleventh Amendment. The Eleventh Amendment bars a suit for damages against a state in federal court unless the state waives its immunity. See, e.g., Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1354-55, 39 L.Ed.2d 662 (1974). Congress did not abrogate the states’ Eleventh Amendment immunity in enacting § 1983. See, e.g., Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). Eleventh Amendment immunity extends to state agencies that act as arms of the state, but it does not extend to counties, cities, or other political subdivisions of the state. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Thus, the issue before us is whether the Granite Board of Education is an arm of the state entitled to Eleventh Amendment immunity, or whether the Board is a political subdivision subject to suit in federal court. In Harris v. Tooele County School District, 471 F.2d 218 (10th Cir.1973), this court held that a Utah school district is entitled to the state’s Eleventh Amendment immunity. Id. at 221. In Harris we relied in part on Utah Supreme Court cases from 1964 and earlier stating that school districts are instrumentalities and agencies of the state. Harris also relied on the manner in which Utah school districts are financed, because “[w]hen it is apparent a judgment against" }, { "docid": "7613335", "title": "", "text": "benefit of, is most helpful in determining whether the members of the school board for District No. 480, acting in their official capacity, are under the Eleventh Amendment immune from suits brought in the federal courts. See Mt. Healthy City School District Board of Education v. Doyle,-U.S.-, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). There a local school board in Ohio determined not to renew a teaching contract and the teacher involved brought suit in federal court against the local board, alleging a violation of his First and Fourteenth Amendment rights, with jurisdiction being based on 28 U.S.C. § 1331 and 1343. The trial court in Mt. Healthy held that any immunity enjoyed by the local school board under the Eleventh Amendment had been waived by Ohio statute. This holding was not disturbed by the Circuit Court on appeal. On certiorari, the Supreme Court, expressing some doubt that there was a waiver, preferred to address itself to the question of whether the local school board had any Eleventh Amendment immunity in the first place. In concluding that the local school board did not enjoy Eleventh Amendment immunity, the Supreme Court spoke as follows: The bar of the Eleventh Amendment to suit in federal courts extends to states and state officials in appropriate circumstances, Edelman v. Jordan, 415 U.S. 651, [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Ford Motor Co. v. Department of Treasury, supra, but does not extend to counties and similar municipal corporations. See County of Lincoln v. Luning, 133 U.S. 529, 530, [10 S.Ct. 363, 33 L.Ed. 766] (1890); Moor v. County of Alameda, 411 U.S. 693, 717-721, [93 S.Ct. 1785, 1799-1801, 36 L.Ed.2d 596] (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends at least in part upon the nature of the entity created by state law. Under Ohio law" }, { "docid": "23512741", "title": "", "text": "jurisdiction over the Eleventh Amendment immunity question is appropriate in this case because of considerations of judicial economy. B. Eleventh Amendment Immunity The Eleventh Amendment to the United States Constitution provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State. The Eleventh Amendment protects the sovereignty of the states by prohibiting suits when recovery would be paid from state funds. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). Although the language of the Amendment encompasses only suits brought against a state by citizens of another state, the Supreme Court has held that it also bars suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890). The Amendment’s bar to suits in federal courts extends both to states and to state officials in appropriate circumstances, but it does not extend to counties, municipal corporations, or other political subdivisions of the state. Mt. Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Whether a local school board is protected by Eleventh Amendment immunity, therefore, turns on the question of whether the board is properly classified as an “arm of the State” or as a “municipal corporation or other political subdivision.” Id. Although the ultimate question of whether the state is “the real party in interest” is one of federal law, not state law, see Howlett v. Rose, — U.S. -, -, 110 S.Ct. 2430, 2436, 110 L.Ed.2d 332 (1990) (“To the extent that the [state] law of sovereign immunity reflects a substantive disagreement with the extent to which governmental entities should be held liable for their constitutional violations, that disagreement cannot override the dictates of federal law.”); Hander v. San Jacinto Junior College, 519 F.2d 273, 279 (5th Cir.1975), this court must analyze the board’s function and character" }, { "docid": "7613332", "title": "", "text": "judgment in favor of Peters and Epperson might well be in order, but concluded that under the circumstances the Eleventh Amendment precluded the entry of a money judgment against the local school board members, acting in their official capacity as members of the school board for School District No. 480. In thus holding the trial court in our view committed error. We do not deem the Eleventh Amendment to be applicable to District No. 480. The Eleventh Amendment reads as follows: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. It is well established that under the Eleventh Amendment a non-consenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state. See Edelman v. Jordan, 415 U.S. 651 (1974) and the cases cited therein at page 663, 94 S.Ct. 1347, 39 L.Ed.2d 662. Furthermore, a suit in a federal court against the members of a state board or agency acting in their official capacities is a suit against the board or agency itself, and subject to the immunity afforded by the Eleventh Amendment. Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). In determining in a given case whether a board or agency is an arm or alter ego of the state and therefore in reality the state within the meaning of the Eleventh Amendment, the powers, nature, and characteristics of the board or agency must be critically examined under state law. Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir. 1975). Two primary tests for distinguishing alter egos, enjoying the state’s Eleventh Amendment immunity, from so-called political subdivisions, such as counties and municipalities, which do not enjoy such immunity are: (1) To what extent does the board, although carrying out a state mission, function with substantial au tonomy from the state government" }, { "docid": "15111929", "title": "", "text": "and ADA Claims The DOE claims that it is immune from suit under Article 89, Section 1983, and ADA. The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. Amend. XI. “While the Amendment by its terms does not bar suits against a State by its own citizens, [the Supreme] Court has consistently held that an uncon-senting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). It should be noted here that this immunity from suit does not extend to the Board. Eleventh Amendment protection “shields an entity from suit in federal court only when it is so closely tied to the State as to be a direct means by which the State acts, for instance a state agency. In contrast, when a State creates subdivisions and imbues them with a significant measure of autonomy, ... these subdivisions are considered too separate from the State to be considered its ‘arms.’ ” Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 313, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990) (Brennan, J., concurring in part and concurring in judgment). “To determine whether a local board of education is an arm of the state and thus entitled to Eleventh Amendment protection from suit in federal court, [a district] court must examine the degree to which the entity is supervised by the state and the entity’s source of funds for satisfying judgments rendered against it.” Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir.1989). The Second Circuit has determined that such an entity in New York is not entitled to immunity. See Fay v. S. Colonie Cent. Sch. Dist., 802 F.2d 21, 27 (2d Cir.1986) (“Inferior government bodies do not share in" }, { "docid": "13317274", "title": "", "text": "a state agency or “arm of the state” entitled to immunity from suit under the Eleventh Amendment to the United States Constitution; and (2) does the complaint allege acts by Hager outside of his “official” capacity to sufficiently support an “individual” capacity claim for relief. The defendants object to the Magistrate’s conclusion against them on both of these grounds. The court will first consider the Board’s Eleventh Amendment argument. The Magistrate concluded that, although there is oversight by the state, a local school board in Kentucky retains substantial control over the operation of its district. Thus, local school boards in Kentucky are not merely state agencies. In reaching this result, the Magistrate adopted the same analysis and conclusion reached in Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977), and Cunningham v. Grayson, 541 F.2d 538, 543 (6th Cir.1976), cert. denied, 429 U.S. 1074, 97 S.Ct. 812, 50 L.Ed.2d 792 (1977). Cunningham specifically involved Kentucky schools. The Board continues to argue that “tumultuous” developments in Kentucky law since Cunningham now force an opposition conclusion. They particularly point to the recent Kentucky Supreme Court ruling that the Commonwealth’s system of schools violates the Kentucky Constitution. Rose v. The Council for Better Education, Inc., 790 S.W.2d 186 (Ky.1989) [Record No. 9, Exhibit], There, the court held that the legislature was required not only to establish the school system, but to continually monitor and supervise it. Id. at 211. The Board also relies on Clevinger v. Board of Education of Pike County, Kentucky, 789 S.W.2d 5, 10-11 (Ky.1990), in which the Kentucky Supreme Court reaffirmed that local school boards in Kentucky are entitled to state law sovereign immunity and, in so doing, stated that “[t]here has never been any question about the status of a local school board as an agency of state government....” The court appeared to interpret the United States Supreme Court decision in Will v. Michigan Dep’t of State Police, 491 U.S. -, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), as holding that local government units protected by state" }, { "docid": "15483960", "title": "", "text": "immunity in the first place. In concluding that the local school board did not enjoy Eleventh Amendment immunity, the Supreme Court spoke as follows: The bar of the Eleventh Amendment to suit in federal courts extends to states and state officials in appropriate circumstances, Edelman v. Jordan, 415 U.S. 651, [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Ford Motor Co. v. Department of Treasury, supra, but does not extend to counties and similar municipal corporations. See County of Lincoln v. Luning, 133 U.S. 529, 530, [10 S.Ct. 363, 33 L.Ed. 766] (1890); Moor v. County of Alameda, 411 U.S. 693, 717-721, [93 S.Ct. 1785, 36 L.Ed.2d 596] (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends at least in part upon the nature of the entity created by state law. Under Ohio law the “state” does not include “political subdivisions,” and “political subdivisions” do include local school districts. Ohio Rev.Code §2743.01. Petitioner is but one of many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education, Ohio Rev.Code § 3301.07, and receives a significant amount of money from the State. Ohio Rev.Code § 3317. But local school boards have extensive powers to issue bonds, Ohio Rev.Code § 133.27, and to levy taxes within certain restrictions of state law. Ohio Rev.Code §§ 5705.02, 5705.03, 5705.-192, 5705.194. On balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State. We therefore hold that it was not entitled to assert any Eleventh Amendment immunity from suit in the federal courts. We perceive a considerable similarity between District No. 480 in Seward County, Kansas and the local Ohio school board in Mt. Healthy. Local unified school districts" }, { "docid": "7613336", "title": "", "text": "concluding that the local school board did not enjoy Eleventh Amendment immunity, the Supreme Court spoke as follows: The bar of the Eleventh Amendment to suit in federal courts extends to states and state officials in appropriate circumstances, Edelman v. Jordan, 415 U.S. 651, [94 S.Ct. 1347, 39 L.Ed.2d 662] (1974); Ford Motor Co. v. Department of Treasury, supra, but does not extend to counties and similar municipal corporations. See County of Lincoln v. Luning, 133 U.S. 529, 530, [10 S.Ct. 363, 33 L.Ed. 766] (1890); Moor v. County of Alameda, 411 U.S. 693, 717-721, [93 S.Ct. 1785, 1799-1801, 36 L.Ed.2d 596] (1973). The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends at least in part upon the nature of the entity created by state law. Under Ohio law the “state” does not include “political subdivisions,” and “political subdivisions” do include local school districts. Ohio Rev. Code § 2743.01. Petitioner is but one of many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education, Ohio Rev. Code § 3301.07, and receives a significant amount of money from the State. Ohio Rev. Code § 3317. But local school boards have extensive powers to issue bonds, Ohio Rev. Code § 133.27, and to levy taxes within certain restrictions of state law. Ohio Rev. Code §§ 5705.02, 5705.03, 5705.192, 5705.194. On balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State. We therefore hold that it was not entitled to assert any Eleventh Amendment immunity from suit in the federal courts. We perceive a considerable similarity between District No. 480 in Seward County, Kansas and the local Ohio school board in Mt. Healthy. Local unified school" }, { "docid": "23016444", "title": "", "text": "Jersey Transit Rail Operations, Inc., 873 F.2d 655, 658 n. 1 (3d Cir.), cert. denied, — U.S. -, 110 S.Ct. 148, 107 L.Ed.2d 107 (1989). We believe the district court is correct. The eleventh amendment provides that: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const., amend. XI. To determine whether the School District is insulated by eleventh amendment immunity, we must decide whether a Pennsylvania school district is an alter ego of the Commonwealth of Pennsylvania. This depends upon the powers granted the school district by the state. Mt. Healthy City School District Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). In Mt. Healthy, the Court held that the school district did not share in Ohio’s eleventh amendment immunity. Under Ohio law, the term “political subdivision” includes school districts, but the state “does not include political subdivisions.” Mt. Healthy, 429 U.S. at 280, 97 S.Ct. at 572. Ohio provides its school districts with significant amounts of money. But local school districts retain extensive power to issue bonds and levy taxes subject to certain state restrictions. Mt. Healthy, 429 U.S. at 280, 97 S.Ct. at 573. The Court concluded that the school district was “more like a county or city than ... like an arm of the state,” 429 U.S. at 280-81, 97 S.Ct. at 573, and denied immunity. This School District’s situation under Pennsylvania law is virtually indistinguishable. The term “political subdivision” includes a school district, but the term “commonwealth” does not include political sub divisions. 1 Pa. Cons. Stat. Ann. § 1991 (Purdon Supp.1990). A school district is an incorporated entity with a statutory right to sue and be sued. 24 Pa.Stat.Ann. §§ 2-211/2-213 (Purdon 1988). The Commonwealth does exercise control over educational appropriations, Pa.Stat.Ann. tit. 24, § 25-2501 et seq. (Purdon Supp.1990), and the creation of state agency liaison services called “intermediate units,” Pa." }, { "docid": "23297869", "title": "", "text": "415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Supreme Court held that the Amendment prohibited that portion of a federal district court’s decree that ordered Illinois state officials to pay retroactive public assistance benefits. In this case, Judge Curtin relied on Edelman v. Jordan in refusing to grant damages against the State defendant but went on to hold that the County defendant is not an arm of the State for purposes of Eleventh Amendment immunity. The correctness of this ruling is the key issue on the County defendant’s appeal. We start with the proposition reaffirmed in Edelman v. Jordan, supra, 415 U.S. at 667 n.12, 94 S.Ct. at 1358 n.12, that “a county does not occupy the same position as a State for purposes of the Eleventh Amendment.” The same footnote states that “while county action is generally state action for purposes of the Fourteenth Amendment,” as plaintiff alleged here in her section 1983 action, “a county defendant is not necessarily a state defendant for purposes of the Eleventh Amendment.” Id. Subsequently, in Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977), the Court characterized the relevant issue as whether the School Board defendant there was “to be treated as an arm of the State partaking of the State’s Eleventh Amendment immunity, or . . . as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.” In the same passage the Court also stated that “[t]he bar of the Eleventh Amendment . does not extent to counties and similar municipal corporations.” Since defendant James Reed, as Commissioner of the Monroe County Department of Social Services, is concededly an employee of Monroe County, it is arguable that this fact, under the Court’s criteria, resolves the issue here. But defendants argue that local social services agencies, unlike counties, are considered to be “arm[s] of the State” since they are a part of, and supervised by, the State Department of Social Services. Defendants stress that in Mt. Healthy, supra, 429 U.S. at 280," } ]

[ { "docid": "22706908", "title": "", "text": "created reason to discourage unconstitutional searches by a State, and the States, having no judicially mandated controls, were free to engage in such searches. Elkins v. United States, 364 U. S. 206, was decided in 1960. Invoking its “supervisory power over the administration of criminal justice in the federal courts,” id., at 216, the Court held that “evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant’s immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant’s timely objection in a federal criminal trial.” Id., at 223. The rule thus announced apparently served two purposes. First, it assured that a State, which could admit the evidence in its own proceedings if it so chose, nevertheless would suffer some deterrence in that its federal counterparts would be unable to use the evidence in federal criminal proceedings. Second, the rule discouraged federal authorities from using a state official to circumvent the restrictions of Weeks. Only one year later, however, the exclusionary rule was made applicable to state criminal trials. Mapp v. Ohio, 367 U. S. 643 (1961). The Court ruled: “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government.” Id., at 655. The debate within the Court on the exclusionary rule has always been a warm one. It has been unaided, unhappily, by any convincing empirical evidence on the effects of the rule. The Court, however, has established that the “prime purpose” of the rule, if not the sole one, “is to deter future unlawful police conduct.” United States v. Calandra, 414 U. S. 338, 347 (1974). See United States v. Peltier, 422 U. S. 531, 536-539 (1975). Thus, “[i]n sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U. S., at" } ]

[ { "docid": "23512674", "title": "", "text": "rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ ” United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (quoting Calandra, 414 U.S. at 348, 94 S.Ct. at 620). Thus, the Court has declined to adopt a “ ‘per se or “but for” rule’ ” of causation that would render inadmissible all evidence discovered through a chain of causation that started with illegal police action. United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978) (quoting Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)). Instead, the Court has determined that the exclusionary rule should not apply when the causal connection between illegal police conduct and the procurement of evidence is “ ‘so attenuated as to dissipate the taint’ ” of the illegal action. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939)); see also Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975), the Supreme Court articulated several factors that guide the determination “whether the taint of an unlawful search or arrest has sufficiently dissipated so as to no longer taint a subsequently acquired statement.” United States v. Patino, 862 F.2d 128, 132 (7th Cir.1988) (citing Brown), cert. denied, — U.S. -, 109 S.Ct. 2072, 104 L.Ed.2d 637 (1989). As indicated in Brown, the voluntariness of the statement under the fifth amendment is a “threshold requirement.” 422 U.S. at 604, 95 S.Ct. at 2262; see Patino, 862 F.2d at 132. Although voluntariness is an important factor, it is not dispositive and does not end the attenuation inquiry. The statement still must be “ ‘sufficiently an act of free will to purge the primary taint’ ” of the fourth amendment violation. Brown, 422 U.S. at 602," }, { "docid": "22997463", "title": "", "text": "U.S. 590, 607, 609-12, 95 S.Ct. 2254, 2263, 2265-66, 45 L.Ed.2d 416, 428, 431-32 (Powell, J., concurring in part) (In cases in which official conduct is flagrantly abusive of fourth amendment rights, “the deterrent value of the exclusionary rule is most likely to be effective, and the corresponding mandate to preserve judicial integrity, . . . most clearly demands that the fruits of official misconduct be denied.”) The imperative of judicial integrity is nowhere mentioned in the majority opinion in Calandra, despite vigorous arguments by the dissent that this rationale dictated an opposite result in the case. 414 U.S. at 355-67, 94 S.Ct. 613. The majority opinion in Michigan v. Tucker, 1974, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182, a fifth amendment case discussing the policies of the fourth amendment exclusionary rule, stated that the judicial integrity rationale is really an assimilation of the more specific rationales discussed in the text of this opinion, and does not in their absence provide an independent basis for excluding challenged evidence. . See United States v. Calandra, supra, 414 U.S. at 350-51, 94 S.Ct. 613. . Id. . Walder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503. Cf. Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (similar rule in respect to statements obtained from defendant without Miranda . warnings). . Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Nardone v. United States, 1939, 308 U.S. 338, 341, 80 S.Ct. 266, 84 L.Ed. 307. . See United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct. 613 (dicta); Alderman v. United States, 1969, 394 U.S. 165, 174-75, 89 S.Ct. 961, 22 L.Ed.2d 176. . The illogical nature of the standing requirement as a means of balancing the policies for and against the exclusionary rule has been noted frequently. See, e. g., United States v. Hunt, 5 Cir. 1974, 505 F.2d 931, Kaplan, supra note 136, at 1048; Note, Standing to Assert Constitutional Ius Tertii, 88 Harv.L.Rev. 423, 442 n." }, { "docid": "23512673", "title": "", "text": "officers. Eventually, the officers had to ask Mr. Fazio to leave. These facts do not suggest the existence of “[cjoercive police activity,” which is “ ‘a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment.’ ” United States ex rel. Link v. Lane, 811 F.2d 1166, 1170 (7th Cir.1987) (quoting Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986)). C. Was the Statement Sufficiently Attenuated from the Illegal Search Mr. Fazio also contends that his statement must be suppressed pursuant to the exclusionary rule because it was the product of the illegal search pursuant to the invalid warrant. The exclusionary rule is a “judicially created remedy,” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974), whose “prime purpose is to deter future unlawful police conduct,” id. at 347, 94 S.Ct. at 619. In keeping with that purpose, the Supreme Court repeatedly has noted that “ ‘application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.’ ” United States v. Leon, 468 U.S. 897, 908, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (quoting Calandra, 414 U.S. at 348, 94 S.Ct. at 620). Thus, the Court has declined to adopt a “ ‘per se or “but for” rule’ ” of causation that would render inadmissible all evidence discovered through a chain of causation that started with illegal police action. United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978) (quoting Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)). Instead, the Court has determined that the exclusionary rule should not apply when the causal connection between illegal police conduct and the procurement of evidence is “ ‘so attenuated as to dissipate the taint’ ” of the illegal action. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984) (quoting Nardone v. United States, 308 U.S. 338, 341," }, { "docid": "13049499", "title": "", "text": "S.W.2d 906 (Tex.Cr.App.1967), which adopted a per se rule of admissibility of a confession, despite any illegality in the arrest, if given pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).” (Page 3). “In Lacefield, the issue presented to the Texas Court of Criminal Appeals was whether the Wong Sun v. U. S., 317 [371] U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), doctrine of the ‘fruit of the poisonous tree’ was negated in arrest/confession situations by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Texas Court rejected the Brown v. Illinois solution, citing Rogers v. U. S., 330 F.2d 535 (5th Cir. 1964); Hollingsworth v. U. S., 321 F.2d 342 (10th Cir. 1963); and Burke v. U. S., 328 F.2d 399 (1st Cir. 1964), et al.” (Page 10). The opinion of the Court of Criminal Appeals in the Lacefield case, contrary to the above statements in Petitioner’s brief, did not adopt a per se rule of admissibility of a confession given while unlawfully arrested if given pursuant to Miranda v. Arizona. In fact, the court did not even mention such a rule. The court did reject the converse of the rule to the effect that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This is in accord with the opinion of the Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the court stated: “But ‘[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.’ United States v. Calandra, 414 U.S. (338), at 348, 94 S.Ct. 613, 38 L.Ed.2d 561. See also Michigan v. Tucker, 417 U.S. 433, 446-447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).” 422 U.S. 600, 95 S.Ct. 2260, 45 L.Ed.2d 425. Also, contrary to Petitioner’s assertions in his brief, the Lacefield court did not reject the Brown v. Illinois" }, { "docid": "23036584", "title": "", "text": "S.Ct. 1054, 55 L.Ed.2d 268 (1978). The Court held that the attenuated connection between the illegal search and the testimony of a witness discovered through that illegal search rendered the testimony admissible. Id. at 279, 98 S.Ct. at 1061. In reaching its holding it drew a distinction which applies here. [W]e have declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence, whether tangible or live-witness testimony, • which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975). . “The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. . . . ” Smith v. United States, . . . 117 U.S.App.D.C. 1, 4, 324 F.2d 879, 881 (D.C.Cir.1963), cert. denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964) . . .. Id. at 276, 277, 98 S.Ct. at 1060-1061. Third, recent Supreme Court decisions reject earlier statements that portray the exclusion of illegally obtained evidence as constitutionally required and make clear that the exclusionary rule reduces to a “judicially created remedy” to be applied only when it advances its judicial purpose. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Accord, United States v. Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1059. In the fourth amendment context, the “single and distinct” purpose for the exclusionary rule is deterrence of police violations of that constitutional protection against unreasonable searches and seizures. Tehan v. United States ex rel. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453 (1966). Accord, United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). In the fifth and sixth amendment context, the “prime purpose” of the exclusionary rule as applied to the fruits of police" }, { "docid": "3734186", "title": "", "text": "consent to search and the inculpatory statements to avoid exclusion from evidence. The DEA agents gave Miranda warnings to Perez-Es-parza before obtaining his consent to search the car and again before his statements. But proof that statements are voluntarily made after Miranda warnings and therefore satisfy Fifth Amendment requirements is “merely a ‘threshold requirement’ for Fourth Amendment analysis.” Dunaway v. New York, supra, 99 S.Ct. at 2259 (quoting from Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 516 (1975)). In Brown v. Illinois, supra, 422 U.S. at 601, 95 S.Ct. at 2260, the Supreme Court stated that “[t]he exclusionary rule. . . . , when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Just what “interests and policies” the Fourth Amendment protects, however, are not easy to identify. We have received conflicting signals from the Supreme Court as to whether the sole purpose of the exclusionary rule is to deter unconstitutional police conduct, or whether judicial integrity concerns are equally implicated. Compare United States v. Calandra, 414 U.S. 338, 347-A8, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (mentioning deterrence as “prime purpose” and entirely ignoring judicial integrity considerations) and Stone v. Powell, 428 U.S. 465, 485-86, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976) (primary justification for the exclusionary rule is deterrence; judicial integrity “has limited force as a justification for the exclusion of highly probative evidence”) with Brown v. Illinois, supra, 422 U.S. at 599, 95 S.Ct. 2254 (exclusionary rule protects Fourth Amendment guarantees in two respects: deterrence and judicial integrity). Without any in-depth analysis the Court in Dunaway indicated that the exclusionary rule, as an adjunct to the Fourth Amendment, seeks to deter unconstitutional police conduct and to avoid compromising the integrity of the courts by use of unconstitutionally obtained evidence. Dunaway v. New York, supra, 99 S.Ct. at 2259. For purposes of this opinion, where the issue is so similar, we will adopt the Dunaway formulation. The Court in Brown v. Illinois, supra, announced three factors for courts to consider, beyond" }, { "docid": "23039134", "title": "", "text": "441 (1963); Costello v. United States, 365 U.S. 265, 280, 81 S.Ct. 534, 542, 5 L.Ed.2d 551 (1961) (“[T]he ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from or as a consequence of lawless official acts ....”); see also Kate E. Bloch, Fifth Amendment Compelled Statements: Modeling the Contours of Their Protected Scope, 17 Wash. U. L.Q. 1603, 1637-38 & nn. 210-11 (1994). The doctrine is an extension of the long-recognized exclusionary rule, see Segura v. United States, 468 U.S. 796, 804, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984), and as such has generally been held “to apply only in criminal trials.” Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 2020 n. 4, 141 L.Ed.2d 344 (1998). We find no case in which the doctrine has been successfully invoked to support a § 1983 claim, and we see no reason why it could be. B The fruit of the poisonous tree doctrine is calculated “to deter future unlawful police conduct” and protect liberty by creating an incentive — avoidance of the suppression of illegally seized evidence— for state actors to respect the constitutional rights of suspects. United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974); see United States v. Peltier, 422 U.S. 531, 536-39, 95 S.Ct. 2313, 2317-18, 45 L.Ed.2d 374 (1975). Like the exclusionary rule, the fruit of the poisonous tree doctrine “is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Calandra, 414 U.S. at 348, 94 S.Ct. at 620; see United States v. Janis, 428 U.S. 433, 446-47, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). “As with any remedial device, the application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Calandra, 414 U.S. at 348, 94 S.Ct. at 620. “If ... the exclusionary rule does not result in appreciable deterrence, then, clearly, its use ... is unwarranted.” Janis, 428 U.S. at 454, 96 S.Ct." }, { "docid": "22870560", "title": "", "text": "the upstairs of your residence? MRS. PETERSON: Yes. DEFENSE COUNSEL: Can you describe who uses Bedroom 1? MRS. PETERSON: Yes. That bedroom is used by my three boys, which is [sic] Stanley, Philip and Gary. DEFENSE COUNSEL: And Bedroom 2? MRS. PETERSON: It is occupied by myself. DEFENSE COUNSEL: And those are the only residents of that house? MRS. PETERSON: Right. . 346 F.2d at 924. . See also United States v. Mix (5th Cir. 1971) 446 F.2d 615; United States Ex Rel. Combs v. LaVallee (2nd Cir. 1969) 417 F.2d 523, 526, cert. denied 397 U.S. 1002, 90 S.Ct. 1150, 25 L.Ed.2d 413 (1970). . Matlock, supra, 415 U.S. at 177, n. 14, 94 S.Ct. át 996, left open the question answered in Sells of whether a third party consent search may be validated in a showing that “the searching officers reasonably believed that * * * [the consenting party] had sufficient authority over the premises to consent to the search.” Application of the exclusionary rule to the fruits of a search conducted under the circumstances in this appeal would seem inappropriate. This is so because the rule is designed “to deter future unlawful police conduct” and not to repair the “personal constitutional right of the party aggrieved.” United States v. Calandra (1974) 414 U.S. 338, 347-48, 94 S.Ct. 613, 620. This deterrent function “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. * * * Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” Michigan v. Tucker (1974) 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182; cf., United States v. Peltier (1975) 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374; Brown v. State of Illinois (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (Powell, J., concurring). . Matlock, supra, 415 U.S. at 171, n. 7, 94 S.Ct. at 993. . 415 U.S. at 171, 94 S.Ct. 988. . The Fourth Amendment guarantee against unreasonable searches and seizures" }, { "docid": "22196745", "title": "", "text": "faith, ... a factor that the Court has recognized reduces significantly the potential deterrent effect of exclusion. See Michigan v. Tucker, 417 U.S., at 447 [94 5. Ct., at 2365]; United States v. Peltier, 422 U.S., at 539 [95 S.Ct., at 2318].” 428 U.S., at 459 n.35, 96 S.Ct., at 3034 n.35. Justice White as well has noted this lack of any deterrent effect: When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their duty, will act in similar fashion in similar circumstances in the future; and the only consequence of the rule as presently administered is that unimpeachable and probative evidence is kept from the trier of fact and the truth-finding function of proceedings is substantially impaired or a trial totally aborted. Stone v. Powell, 428 U.S. at 540, 96 S.Ct. at 3073-74 (White, J., dissenting). And again, Professor Wright has pithily observed that a “police officer will not be deterred from an illegal search if he does not know that it is illegal.” Wright, supra at 740. Any slight deterrent effect of excluding fruits of good-faith arrests is even less than the small deterrence from suppressing the fruits of illegal police actions that are attenuated in effect, that are challenged in habeas corpus petitions on fourth amendment grounds, that are used in grand jury deliberations, or that are used for impeachment. Yet the Supreme Court has found that the deterrent effect of exclusion in the examples listed and others does not justify the societal harm incurred by suppressing relevant and incriminating evidence. United States v. Ceccolini, 435 U.S. 368, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Stone v. Powell, supra; United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct." }, { "docid": "23036586", "title": "", "text": "illegality is deterrence of government denial of the self-incrimination privilege or the counsel right, United States v. Calandra, 414 U.S. at 347, 94 S.Ct. at 619; accord, United States v. Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1059, but a secondary purpose is ensuring the trustworthiness of incriminating statements, Michigan v. Tucker, 417 U.S. 433, 446-47, 448, 94 S.Ct. 2357, 2364-2365, 2366, 41 L.Ed.2d 182 (1974); see Brown v. Illinois, 422 U.S. 590, 600-01, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416 (1975). The attenuated connection exception and the independent source exception are justified because it is unlikely that suppression of attenuated or independently discovered derivative evidence would deter police misconduct and would bar untrustworthy evidence. E. g., United States v. Ceccolini, 435 U.S. at 280, 98 S.Ct. at 1062; see United States v. Houltin, 566 F.2d at 1030-31. This justification also applies to the inevitable discovery exception. Deterrence is only marginally served by suppression of testimony derived from illegally obtained evidence if such testimony would have been discovered without the illegal actions, because the motivation for the illegal search or interrogation was not the quest for derivative evidence that the police were already pursuing and would probably have been discovered in any event. The argument against exclusion becomes particularly forceful if the evidentiary fruit is testimony rather than physical evidence because, as the Supreme Court held in Ceccolini, “[t]he greater the willingness of the witness . . . freely [to] testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.” 435 U.S. at 276, 98 S.Ct. at 1060. The trustworthiness purpose is served only slightly by exclusion of the inevitably discovered fruits of illegal searches or interrogations, because probable subsequent discovery of that same evidence ensures its trustworthiness and permits counsel for the government and for the accused to corroborate or disprove that derivative evidence. The deterrent impact and trustworthiness effect from excluding inevitably discovered evidence must be balanced against the state interest in enforcing the criminal laws and" }, { "docid": "3067648", "title": "", "text": "tree. See, e.g., Silverthome Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920) (“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.”) (Holmes, J.). The exclusionary rule thus seeks to discourage official misconduct by removing the incentive to obtain evidence in violation of the Constitution. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (“[T]he rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” (footnote omitted)). Where exclusion will not “efficaciously” promote those “remedial objectives,” no exclusion will occur. Id. “The Supreme Court developed an exception to the exclusionary rule for cases where an arrest or search involved a Fourth Amendment violation but the connection between the illegal conduct and the subsequent discovery of evidence ‘beeome[s] so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.’ ” United States v. Carter, 573 F.3d 418, 422 (7th Cir.2009) (quoting Brown v. Illinois, 422 U.S. 590, 609, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring)) (alteration in original). In other words, the attenuation inquiry determines the point at which the government began obtaining evidence “by means sufficiently distinguishable to be purged of the primary taint.” Brown, 422 U.S. at 599, 95 S.Ct. 2254 (quotation omitted). The Government bears the burden of identifying that point, id. at 604, 95 S.Ct. 2254, which requires the balancing of three factors: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct,” Ienco, 182 F.3d at 526 (citations omitted). We will examine the three relevant factors in turn and then collectively, to determine whether the Government met its burden to show attenuation, as the district court found. In conducting that analysis, we" }, { "docid": "13299987", "title": "", "text": "428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976) (“The primary justification for the exclusionary rule . . . is the deterrence of police conduct that violates Fourth Amendment rights.”) (cit-, ing cases). The Court occasionally has mentioned, as an alternative rationale for the exclusionary rule, “the imperative of judicial integrity.” E. g., United States v. Peltier, 422 U.S. 531, 536-39, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). In the Court’s more recent decisions, however, the “judicial integrity” rationale has been almost completely discarded. Taken to its logical extension, as Justice Powell pointed out in Stone, the “judicial integrity” rationale would dictate reversal of the Court’s well-established doctrines on standing to object to admission of illegally-seized evidence, impeachment use of such evidence, and admissibility of such evidence absent objection by defendant. See 428 U.S. at 485, 96 S.Ct. 3037 (citing cases). Justice Blackmun pointed out in Janis that the “judicial integrity” inquiry in Fourth Amendment cases “is essentially the same as the inquiry into whether exclusion would serve a deterrent purpose,” 428 U.S. at 458-59 n.35, 96 S.Ct. at 3034; and Justice Rehnquist noted in Michigan v. Tucker that the “judicial integrity” rationale “is really an assimilation of the more specific rationales” such as deterrence, “and does not in their absence provide an independent basis for excluding challenged evidence.” 417 U.S. at 450 n.25, 94 S.Ct. at 2367. Concern with judicial integrity, in sum, “has limited force as a justification for the exclusion of highly probative evidence.” Stone, 428 U.S. at 485, 96 S.Ct. at 3048 (footnote omitted). . Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974). . United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (footnote omitted). . Id. at 347, 94 S.Ct. at 620, quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1457, 4 L.Ed.2d 1669 (1960). Whether the exclusionary rule is indeed “the only effectively available way” to deal with unconstitutional" }, { "docid": "13049500", "title": "", "text": "while unlawfully arrested if given pursuant to Miranda v. Arizona. In fact, the court did not even mention such a rule. The court did reject the converse of the rule to the effect that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). This is in accord with the opinion of the Supreme Court in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the court stated: “But ‘[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.’ United States v. Calandra, 414 U.S. (338), at 348, 94 S.Ct. 613, 38 L.Ed.2d 561. See also Michigan v. Tucker, 417 U.S. 433, 446-447, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).” 422 U.S. 600, 95 S.Ct. 2260, 45 L.Ed.2d 425. Also, contrary to Petitioner’s assertions in his brief, the Lacefield court did not reject the Brown v. Illinois solution. The Supreme Court in Brown v. Illinois rejected the per se admissibility rule, but on the other hand refused to adopt any alternative per se or “but for” rule, saying in this regard: “While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule. The petitioner himself professes not to demand so much.” 422 U.S. 603, 95 S.Ct. 2261, 45 L.Ed.2d 427. In that case, the Supreme Court rules that the admissibility of a confession depends on the facts of each case. The court said: “The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining" }, { "docid": "15881155", "title": "", "text": "U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561, 571-572 (1974), the Government urges that where, as here, the police have obtained a court’s authorization for the operation, the rule should not be applied. This contention does not take full account of another objective of the rule: “closing the doors of the federal courts to any use of evidence unconstitutionally obtained.” Brown v. Illinois, supra, 422 U.S. at 599, 95 S.Ct. at 2259, 45 L.Ed.2d at 424, quoting Wong Sun v. United States, supra, 371 U.S. at 486, 83 S.Ct. at 416, 9 L.Ed.2d at 454. Although the exclusionary rule has recently come under increasing scrutiny and for special reasons in particular contexts has been limited, see Michigan v. Tucker, 417 U.S. 433, 446-448, 94 S.Ct. 2357, 2358, 41 L.Ed.2d 182, 194-195 (1974); United States v. Calandra, supra, 414 U.S. at 347-352, 94 S.Ct. at 619-622, 38 L.Ed.2d at 571-573, its general vitality is still confirmed. Brown v. Illinois, supra, 422 U.S. at 597-600, 95 S.Ct. at 2258-2260, 45 L.Ed.2d at 423-425. To accept the Government’s argument is to ignore the long line of decisions suppressing evidence procured in violation of the Fourth Amendment notwithstanding prior authorization of its seizure by a detached judicial officer. E. g., Whiteley v. Warden, 401 U.S. 560, 564-569, 91 S.Ct. 1031, 1034-1037, 28 L.Ed.2d 306, 310-314 (1971) (warrant issued on complaint insufficient to support finding of probable cause); Spinelli v. United States, 393 U.S. 410, 414-419, 89 S.Ct. 584, 588-591, 21 L.Ed.2d 637, 641-646 (1969) (informant’s tip insufficient to support probable-cause finding for search warrant); Stanford v. Texas, 379 U.S. 476, 481—486, 85 S.Ct. 506, 509-512, 13 L.Ed.2d 431, 434-438 (1965) (warrant over-broad); Aguilar v. Texas, 378 U.S. 108, 113-116, 84 S.Ct. 1509, 1514-1517, 12 L.Ed.2d 723, 728-733 (1964) (affidavit underlying search warrant insufficient to support probable-cause finding). Stated somewhat differently, the Government’s position would reduce the Fourth Amendment’s warrant requirements to naught. And although the constitutional view I espouse would arguably be a new judicial ruling, as the litigant initially obtaining it Crowder would be entitled to its benefit. E. g., Stovall" }, { "docid": "15881154", "title": "", "text": "adversary hearing at which the defendant appeared with counsel; (4) thereafter and before the operation was performed the defendant was afforded an opportunity for appellate review by this court. . It should be noted that several physicians declined to perform the operation on Crowder’s arm without his consent. . Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 534-535, 29 L.Ed. 746, 752-753 (1886). . On the premise that the operation on Crowder’s arm contravened the Fourth Amendment’s standard of reasonableness, the bullet extracted lay in danger of exclusion from his trial as fruit of an unlawful search and seizure. E. g., Brown v. Illinois, 422 U.S. 590, 597-600, 95 S.Ct. 2254, 2258-2260, 45 L.Ed.2d 416, 423-425 (1975); Wong Sun v. United States, 371 U.S. 471, 484-488, 83 S.Ct. 407, 415-417, 9 L.Ed.2d 441, 452-455 (1963). However, since a purpose of the exclusionary rule is deterrence of unlawful police conduct, e. g., Brown v. Illinois, supra, 422 U.S. at 599, 95 S.Ct. at 2259, 45 L.Ed.2d at 424; United States v. Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561, 571-572 (1974), the Government urges that where, as here, the police have obtained a court’s authorization for the operation, the rule should not be applied. This contention does not take full account of another objective of the rule: “closing the doors of the federal courts to any use of evidence unconstitutionally obtained.” Brown v. Illinois, supra, 422 U.S. at 599, 95 S.Ct. at 2259, 45 L.Ed.2d at 424, quoting Wong Sun v. United States, supra, 371 U.S. at 486, 83 S.Ct. at 416, 9 L.Ed.2d at 454. Although the exclusionary rule has recently come under increasing scrutiny and for special reasons in particular contexts has been limited, see Michigan v. Tucker, 417 U.S. 433, 446-448, 94 S.Ct. 2357, 2358, 41 L.Ed.2d 182, 194-195 (1974); United States v. Calandra, supra, 414 U.S. at 347-352, 94 S.Ct. at 619-622, 38 L.Ed.2d at 571-573, its general vitality is still confirmed. Brown v. Illinois, supra, 422 U.S. at 597-600, 95 S.Ct. at 2258-2260, 45 L.Ed.2d at 423-425. To accept" }, { "docid": "23036585", "title": "", "text": "954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964) . . .. Id. at 276, 277, 98 S.Ct. at 1060-1061. Third, recent Supreme Court decisions reject earlier statements that portray the exclusion of illegally obtained evidence as constitutionally required and make clear that the exclusionary rule reduces to a “judicially created remedy” to be applied only when it advances its judicial purpose. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974). Accord, United States v. Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1059. In the fourth amendment context, the “single and distinct” purpose for the exclusionary rule is deterrence of police violations of that constitutional protection against unreasonable searches and seizures. Tehan v. United States ex rel. Shott, 382 U.S. 406, 413, 86 S.Ct. 459, 463, 15 L.Ed.2d 453 (1966). Accord, United States v. Janis, 428 U.S. 433, 446, 96 S.Ct. 3021, 3028, 49 L.Ed.2d 1046 (1976). In the fifth and sixth amendment context, the “prime purpose” of the exclusionary rule as applied to the fruits of police illegality is deterrence of government denial of the self-incrimination privilege or the counsel right, United States v. Calandra, 414 U.S. at 347, 94 S.Ct. at 619; accord, United States v. Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1059, but a secondary purpose is ensuring the trustworthiness of incriminating statements, Michigan v. Tucker, 417 U.S. 433, 446-47, 448, 94 S.Ct. 2357, 2364-2365, 2366, 41 L.Ed.2d 182 (1974); see Brown v. Illinois, 422 U.S. 590, 600-01, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416 (1975). The attenuated connection exception and the independent source exception are justified because it is unlikely that suppression of attenuated or independently discovered derivative evidence would deter police misconduct and would bar untrustworthy evidence. E. g., United States v. Ceccolini, 435 U.S. at 280, 98 S.Ct. at 1062; see United States v. Houltin, 566 F.2d at 1030-31. This justification also applies to the inevitable discovery exception. Deterrence is only marginally served by suppression of testimony derived from illegally obtained evidence if such testimony would have been discovered without the illegal actions, because the" }, { "docid": "13299988", "title": "", "text": "essentially the same as the inquiry into whether exclusion would serve a deterrent purpose,” 428 U.S. at 458-59 n.35, 96 S.Ct. at 3034; and Justice Rehnquist noted in Michigan v. Tucker that the “judicial integrity” rationale “is really an assimilation of the more specific rationales” such as deterrence, “and does not in their absence provide an independent basis for excluding challenged evidence.” 417 U.S. at 450 n.25, 94 S.Ct. at 2367. Concern with judicial integrity, in sum, “has limited force as a justification for the exclusion of highly probative evidence.” Stone, 428 U.S. at 485, 96 S.Ct. at 3048 (footnote omitted). . Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974). . United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (footnote omitted). . Id. at 347, 94 S.Ct. at 620, quoting Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1457, 4 L.Ed.2d 1669 (1960). Whether the exclusionary rule is indeed “the only effectively available way” to deal with unconstitutional searches and seizures, of course, has become a matter of considerable doubt. The Court recently has acknowledged that the deterrent effect of the exclusionary rule is more an assumed hypothesis than a demonstrable fact. See Stone v. Powell, 428 U.S. at 492 & n.32, 96 S.Ct. 3037; United States v. Janis, 428 U.S. at 450-52 n.22, 96 S.Ct. 3021; United States v. Calandra, 414 U.S. at 348 n.5, 94 S.Ct. 613. . Id. at 348, 94 S.Ct. at 620. See Stone v. Powell, 428 U.S. at 486-87, 96 S.Ct. 3037. . United States v. Janis, 428 U.S. at 448-49, 96 S.Ct. at 3029. Accord, Michigan v. Tucker, 417 U.S. at 450, 94 S.Ct. 2357. The Court recognized the societal costs imposed by the exclusionary rule as early as Nardone: Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding public policy expressed in the Constitution or the law of the land. 308 U.S. 338, 340, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939)." }, { "docid": "22196746", "title": "", "text": "officer will not be deterred from an illegal search if he does not know that it is illegal.” Wright, supra at 740. Any slight deterrent effect of excluding fruits of good-faith arrests is even less than the small deterrence from suppressing the fruits of illegal police actions that are attenuated in effect, that are challenged in habeas corpus petitions on fourth amendment grounds, that are used in grand jury deliberations, or that are used for impeachment. Yet the Supreme Court has found that the deterrent effect of exclusion in the examples listed and others does not justify the societal harm incurred by suppressing relevant and incriminating evidence. United States v. Ceccolini, 435 U.S. 368, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Stone v. Powell, supra; United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The good-faith exception that we explicitly recognize today is of a kind with these. Support in Authority for the Technical Violation Facet of the Good-Faith Exception The most common forms of “technical violations” made in good faith are arrests made in good-faith reliance on a statute that is later declared unconstitutional or, as here, on a reasonable interpretation of a statute that is later construed differently. Of course, the exception applies only if the police belief is both bona fide and reasonable. Suppression still results if officers allege a good-faith belief in a “law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws” or in a law that violated a “controlling precedent that [it] was . . . unconstitutional.” Michigan v. DeFillippo, 443 U.S. at 38, 99 S.Ct. at 2632. In DeFillippo the Supreme Court admitted evidence seized in a good-faith arrest with probable cause (without a warrant) for violation of a law later declared unconstitutional. An officer arrested DeFillippo in" }, { "docid": "22997462", "title": "", "text": "with other limitations on the application of the rule. See Monaghan, The Supreme Court, 1974 Term-Foreward: Constitutional Common Law, 89 Harv.L.Rev. 1, 5 & n. 33 (1975). . United States v. Peltier, 1975, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374, dealt with the judicial integrity rationale in this manner (citations omitted): Decisions of this Court applying the exclusionary rule to unconstitutionally seized evidence have referred to “the imperative of judicial integrity,” . ., although the Court has relied principally upon the deterrent purpose served by the exclusionary rule. . The majority opinion went on to conclude that, in the context of a good faith search by officials which is of questionable legality because of a subsequent refinement of search and seizure law, the correct approach to judicial integrity rationale does not differ markedly from the analysis the Court has utilized in determining whether the deterrence rationale undergirding the exclusionary rule would be furthered by retroactive application of new constitutional doctrines. Id. at 538, 95 S.Ct. at 2318. See Brown v. Illinois, 1975, 422 U.S. 590, 607, 609-12, 95 S.Ct. 2254, 2263, 2265-66, 45 L.Ed.2d 416, 428, 431-32 (Powell, J., concurring in part) (In cases in which official conduct is flagrantly abusive of fourth amendment rights, “the deterrent value of the exclusionary rule is most likely to be effective, and the corresponding mandate to preserve judicial integrity, . . . most clearly demands that the fruits of official misconduct be denied.”) The imperative of judicial integrity is nowhere mentioned in the majority opinion in Calandra, despite vigorous arguments by the dissent that this rationale dictated an opposite result in the case. 414 U.S. at 355-67, 94 S.Ct. 613. The majority opinion in Michigan v. Tucker, 1974, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182, a fifth amendment case discussing the policies of the fourth amendment exclusionary rule, stated that the judicial integrity rationale is really an assimilation of the more specific rationales discussed in the text of this opinion, and does not in their absence provide an independent basis for excluding challenged evidence. ." }, { "docid": "22196741", "title": "", "text": "or flagrantly illegal.” At least “four current members of the United States Supreme Court have urged the adoption of a good faith exception to the exclusionary rule.” Ball, supra at 635. E. g., Stone v. Powell, 428 U.S. 465, 538, 96 S.Ct. 3037, 3073, 49 L.Ed.2d 1067 (1976) (White, J., dissenting); Brown v. Illinois, 422 U.S. 590, 610-12, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975) (Powell, J., concurring). The Supreme Court itself, in a long series of recent decisions, has restricted the application of the rule so that it is not now — if it ever was — coextensive with the fourth amendment. E. g., Michigan v. De-Fillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); Stone v. Powell, supra; United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). We think that reason plainly demands explicit recognition of a reasonable good-faith exception as well. Justification for the Good-Faith Exception The exclusionary rule, it is now well settled, is not itself a requirement of the Constitution. E. g., Stone v. Powell, supra, 428 U.S. at 482, 96 S.Ct. at 3046; United States v. Calandra, supra 414 U.S. at 348, 94 S.Ct. at 620. Rather, it is a judge-made rule crafted to enforce constitutional requirements, justified in the illegal search context only by its deterrence of future police misconduct. The rule’s application, moreover, must be considered in light of its direct effect of preventing the “whole truth” from being told and its byproducts of freeing guilty criminals and" } ]

[ { "docid": "5433400", "title": "", "text": "& Trust Co., 487 U.S. 977, 998, 108 S.Ct. 2777, 2790, 101 L.Ed.2d 827 (1988)). 2. Analysis The Government contends that summary judgment is warranted in its favor on the issue of whether Warren’s preapplication residency requirement violated Title YII by having a disparate impact on black job applicants for municipal positions with the City. a. Prima facie case First, the Government asserts that it has, as a matter of law, made out a prima facie case of discrimination with regard to the challenged preapplication residency requirement. The Government relies (as it most likely must) on statistical data in support of its assertion. Briefly stated the Government relies on the following statistical sources: the 1980 federal census, more specifically the 1980 Bureau of Census Reports, General Social and Economic Characteristics, PC 80-1-C15 (Michigan), Section 1, Tables 120 and 134; various other census documents; 105 1984 EEO-1 reports filed by private employers in Warren; and applicant flow data forms and other data supplied by Warren. The Government also relies upon expert interpretation of these statistical sources. In summarizing this data for purposes of supporting its assertion that it has shown a prima facie case of discrimination, the Government states: The statistical evidence in this case, ..., establishes that Warren’s use of dura-tional preapplication residency requirements at least substantially caused Warren’s having zero (0) black employees among its 1,500 municipal employees at the time the United States filed suit. At the time suit was filed, Warren had virtually no blacks (approximately 188 or 0.2%) in its resident civilian labor force of 80,992 people. Consequently, Warren’s durational preapplication residency requirement reduced the number of blacks eligible for municipal jobs from the maximum of 344,294, the number of blacks in the civilian labor force in the Detroit SMSA [“Standard Metropolitan Statistical Area”], to 188, the number of resident blacks in Warren’s civilian labor force, thus virtually barring all blacks from consideration for employment with Warren. Such an impediment is precisely the kind of “artificial, arbitrary and unnecessary barrier” to employment that Congress sought to eliminate in enacting Title VII. Griggs [v. Duke Power Co.," } ]

[ { "docid": "5433403", "title": "", "text": "VII claims against it can only be analyzed under a disparate treatment theory. Brief in Response to Plaintiff's Motion for Summary Judgment or Alternatively for Preliminary Injunctive Relief, at pp. 17-18. In support of this argument, Warren primarily relies upon the following cases: Furnco Construction Corp. v. Waters, 438 U.S. 567, 575, n. 7, 98 S.Ct. 2943, 2948, n. 7, 57 L.Ed.2d 957 (1978); Connecticut v. Teal, 457 U.S. 440, 454, 102 S.Ct. 2525, 2534, 73 L.Ed.2d 130 (1982); and Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 93 (6th Cir.1982). These cases, Warren asserts, stand for the proposition that the disparate impact theory may only be used where the complained of employment practice involves employment “selection devices.” Brief in Response to Plaintiff’s Motion for Summary Judgment or Alternatively for Preliminary Injunctive Relief, at p. 17. Based upon the pleadings and other documentation submitted by the parties including the statistical data submitted in support of the Government’s motion for summary judgment, this Court concludes that the Government has set forth a prima facie case of disparate impact with regard to Warren’s use of the preapplication residency requirement. The statistical evidence introduced by the Government, the expert analysis showing a large standard deviation, the recent applicant flow data, and the case law cited by the Government, support the Government’s disparate impact claim. Information relating to the standard deviation is provided in Attachment 1, Attachments to Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment. This Attachment contains the “Declaration of Martha Aylas Dusenberry.” In her Declaration, Dusen-berry states the following: (1) that she is a “Mathematical Statistician” employed by the Department of Justice; (2) that she has examined the statistical evidence gathered by the Government in support of its case against Warren; (3) that she has used such information to calculate the “statistical disparities” between the number of blacks actually employed by Warren at the time suit was filed and the number of blacks expected to be employed based on a civilian labor force that is 6.6% black; (4) that the number of blacks expected to be" }, { "docid": "5433406", "title": "", "text": "by the Court, the Court believes that the Government’s summary is reliable: Since Warren’s durational preapplication residency requirement was eliminated, Warren has recruited for applicants in at least 31 job categories covering the complete range of city positions, and has received at least one application from a black person living outside of Warren for the vast majority (25) of them. See attachment 2 hereto. Since the residency requirements were lifted, Warren has received applications from at least 216 blacks living outside of the City of Warren for permanent positions. At least 228 blacks have also applied for temporary positions; _ Thus, since the du-rational preapplication residency requirements were lifted, Warren has received approximately 444 applications from nonresident blacks. Warren has hired at least six blacks as permanent employees, and at least 40 in temporary positions. Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment, at pp. 4-5 (footnotes omitted). Indeed, the statistical evidence produced by the Government evinces a picture of the effects of Warren’s use of the residency requirement remarkably similar to that described by Judge Posner in a case analogous to the present matter: The town of Cicero, population 61,000, an urban working-class suburb of and immediately adjoining Chicago, has never had a black municipal employee. Granted, it has virtually no black residents ... [b]ut almost 20 percent of the employees of its large private-sector employers are black, which is not surprising considering the racial makeup of Chicago and of the suburbs adjoining Cicero, and it is implausible that economic factors alone would explain the difference between the private-sector and the public-sector employment of blacks in the town. Some public-sector jobs in Cicero may require credentials or qualifications possessed by few black people, but there is no evidence to this effect; and most public-sector jobs differ from private-sector jobs only in the identity of the employer. United States v. Town of Cicero, Ill., 786 F.2d 331, 335 (7th Cir.1986) (Posner J., concurring and dissenting). The Court notes that the Government has not produced specific statistical evidence as to the number of qualified blacks in" }, { "docid": "5433419", "title": "", "text": "of hiring eligibility lists compiled while the residency requirement was still in effect; advertising job openings in the Detroit Free Press; sending job notices to the MESC as well as local colleges and universities; advertising in the Michigan Chronicle and on WJLB radio; hiring sixty-two blacks; and, implementing an EEO plan as well as a racial harassment plan. See Defendant City of Warren’s Brief as to why Judgment Should be Entered in its Favor, at pp. 18-20; Defendant’s Supplemental Brief in Support of Renewed Motion for Summary Judgment and in Opposition to Plaintiff’s Renewed Motion for Summary Judgment, at pp. 4, 10-11; Reply Brief in Support of City of Warren’s Motion to Dismiss or for Summary Judgment, at pp. 5-7. The Government contests the correctness of Warren’s mootness arguments. In essence, the Government argues that Warren has not met the standards of Davis because: ([Ajssuming [a Title VII violation] to have occurred ...), the City has never even attempted to identify and compensate victims of its discriminatory dura-tional preapplication residency requirement; indeed, it is undisputed that Warren has never taken a single step to attempt to identify victims of that discriminatory practice, much less provide full, make-whole relief to them. * * * Given these undisputed facts, the City’s other post-1986 actions could not possibly have “completely and irrevocably eradicated the effects of the alleged violation.” Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment, at p. 24. In other words, the Government argues that, even if Warren, in good faith, has sought to eradicate the effects of its Title VII violation, Davis’ second prong, that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” has not been satisfied. This Court concludes that the Government’s arguments as to mootness are well taken. The Court has determined that Warren’s use of the residency requirement violated Title VII under a disparate impact theory. That Warren has, subsequent to its elimination of the requirement, expanded its recruitment efforts, hired blacks into municipal jobs and otherwise sought to correct the Title VII violations, does" }, { "docid": "5433394", "title": "", "text": "Matsushita Electric Industries Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). Also, even though the basic facts may not be disputed, summary judgment may be inappropriate when contradictory inferences may be drawn from such facts. See United States v. Diebold, Inc., supra; EEOC v. United Assoc. of Journeymen & Apprentices of the Plumbing & Pipefitting Industry, Local 189, 427 F.2d 1091 (6th Cir.1970). The Court recognizes that the motion before it is an extraordinary remedy. However, this does not mean that summary judgment should be disfavored; it may be an appropriate avenue for the just, speedy and inexpensive determination of a matter. Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934 (6th Cir.1989). III. Discussion A. Did Warren violate Title VII by having a preapplication residency requirement prior to 1986? In its present motion for summary judgment the Government argues that Warren’s preapplication residency requirement violated § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) in that the requirement caused Warren as an employer to, in the words of the statute, “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities.” In other words, the Government is arguing that Warren’s residency requirement had a disparate impact on (prospective) black job applicants for municipal positions in the City. Warren, in its present summary judgment motion, argues that its preapplication residency requirement did not violate Title VII in that Warren did not use the requirement to disparately treat black job applicants. Indeed, Warren has expressly stat ed that, for purposes of its present motion and its defense against the Government’s motion, it is not arguing “that the residency requirements did not have an adverse impact against blacks.” Defendant’s Supplemental Brief in Support of Renewed Motion for Summary Judgment and in Opposition to Plaintiff’s Renewed Motion for Summary Judgment (“Warren’s Supplemental Brief”) at p. 6. Instead, Warren claims it" }, { "docid": "5433405", "title": "", "text": "employed by Warren, at the time of suit, is/was 99; (5) that at the time of suit Warren employed 0 blacks; (6) that the disparity between the observed number of blacks employed by Warren, 0, and the expected number, 99, is equal to 10.3 “standard deviation units”; and (7) that the likelihood of a statistical disparity of 10.3 standard deviations occurring by chance is 1 in 10 24, or “0” (none). If this standard deviation is accurate, i.e. not “flawed”, even Warren would concede its significance in tending to show discrimination. Under settled principles, statistical evidence reflecting an alleged under-representation of a protected class in a sample that includes protected and non-protected constituents (binomial distribution) suggests purposeful discrimination only if the disparity between the “expected value” and the “observed number” exceeds two or three standard deviations. Castenada [Castaneda] v. Partida, 430 U.S. 482, 496 n. 15, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977). Warren’s Motion to Dismiss or for Summary Judgment, at pp. 28-29. With respect to the recent applicant flow data relied upon by the Court, the Court believes that the Government’s summary is reliable: Since Warren’s durational preapplication residency requirement was eliminated, Warren has recruited for applicants in at least 31 job categories covering the complete range of city positions, and has received at least one application from a black person living outside of Warren for the vast majority (25) of them. See attachment 2 hereto. Since the residency requirements were lifted, Warren has received applications from at least 216 blacks living outside of the City of Warren for permanent positions. At least 228 blacks have also applied for temporary positions; _ Thus, since the du-rational preapplication residency requirements were lifted, Warren has received approximately 444 applications from nonresident blacks. Warren has hired at least six blacks as permanent employees, and at least 40 in temporary positions. Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment, at pp. 4-5 (footnotes omitted). Indeed, the statistical evidence produced by the Government evinces a picture of the effects of Warren’s use of the residency requirement remarkably" }, { "docid": "5433391", "title": "", "text": "OPINION DUGGAN, District Judge. This is a Title VII action instituted in 1986 by plaintiff, United States of America (“Government”), against defendant, City of Warren (“Warren” or “City”). Presently before the Court are two motions: (1) the Government’s renewed motion for partial summary judgment, and (2) Warren’s renewed motion for summary judgment. I. Background In 1958, Warren enacted a preapplication residency requirement relating to persons applying for police and firefighter jobs and other municipal jobs in the City. The residency requirement mandated that all persons who applied for City jobs had to have been residents of the City for at least one year prior to the time of their application. In 1984, Warren rescinded its preapplication residency requirement as to police and fire applicants. In 1986, Warren rescinded the residency requirement as to all other municipal job applicants. In 1986, the Government instituted the present suit against Warren. In its suit, the Government alleges that Warren’s preapplication residency requirement violated Title VII and that Warren continues to violate Title VII with regard to its recruitment of blacks for municipal jobs. At a hearing held in this Court in September, 1990, the Government and Warren agreed upon the following as being “issues” in the present lawsuit: A). Did Warren violate Title VII by having a preapplication residency requirement prior to 1986? B). Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren’s actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue [issue “A”] moot? C). Assuming Warren violated Title VII and the issue is not moot, can a federal judge determine whether relief [i.e., injunctions and make whole relief to victims of the Title VII violation] is appropriate? II. Summary Judgment To warrant the grant of summary judgment under Fed.R.Civ.P. 56, the moving party must show that “the pleadings, depositions, answers to interrogatories, 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" }, { "docid": "5433395", "title": "", "text": "§ 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) in that the requirement caused Warren as an employer to, in the words of the statute, “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities.” In other words, the Government is arguing that Warren’s residency requirement had a disparate impact on (prospective) black job applicants for municipal positions in the City. Warren, in its present summary judgment motion, argues that its preapplication residency requirement did not violate Title VII in that Warren did not use the requirement to disparately treat black job applicants. Indeed, Warren has expressly stat ed that, for purposes of its present motion and its defense against the Government’s motion, it is not arguing “that the residency requirements did not have an adverse impact against blacks.” Defendant’s Supplemental Brief in Support of Renewed Motion for Summary Judgment and in Opposition to Plaintiff’s Renewed Motion for Summary Judgment (“Warren’s Supplemental Brief”) at p. 6. Instead, Warren claims it “preserves” the arguments made in its original summary judgment motion that the residency requirement did not disparately impact blacks. Id,., at p. 6, n. 2. 1. Applicable law Through the course of several decisions the Supreme Court has set forth the appropriate standards for disparate impact claims under Title VII. These standards may be stated as follows: The plaintiff in a disparate impact case must first establish a prima facie case of discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Such a prima facie case will be established if the plaintiff shows that a facially neutral employment standard is discriminatory in effect in that it selects applicants for hire in a discriminatory pattern. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977). A plaintiff can make this showing by using statistical proof to make a comparison, in a case where race discrimination is alleged, “between the racial composition of the qualified persons in the labor market and the persons" }, { "docid": "5433417", "title": "", "text": "concludes that Warren’s preapplication residency requirement had a disparate impact on blacks and, thus, violated § 703(a)(2) of Title VII. The Court grants summary judgment in favor of the Government on its claim that Warren’s preapplication residency requirement had a disparate impact on blacks in violation of Title VII. B. Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren’s actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue [issue “A”] moot? Warren argues that, even if it violated Title VII by having a preapplication residency requirement prior to 1986, its actions subsequent to that time have rendered moot any claim the Government may have against it as to the Title VII violation. As support for its argument Warren mainly relies on County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). In this case, the Supreme Court stated that a case may become moot when: (1) it can be said with assurance that “there is no reasonable expectation ...” that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id., 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). The Court reasoned: “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. The Court further stated: “The burden of demonstrating mootness ‘is a heavy one.’ ” Id. (emphasis added) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Warren asserts that it has met both of the standards set forth in Davis because it has endeavored to eradicate any effects the residency requirement may have had on blacks with regard to the City’s recruitment (and hiring) efforts. In support of this assertion Warren details its recruitment efforts subsequent to its repeal of the residency requirement, to wit: elimination" }, { "docid": "5433399", "title": "", "text": "for it to pass muster; this degree of scrutiny would be almost impossible for most employers to meet, .... Id. If the employer meets its burden of production as to a business justification, the plaintiff may still prevail on his/her disparate impact claim if he/she “persuade[s] the factfinder that ‘other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate [hiring] interests] ....’” Id. By demonstrating this, the plaintiff would, in effect, prove that the employer was using the challenged practice “ ‘merely as a ‘pretext’ for discrimination.’ ” Id. (quoting Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. at 2375). Where a plaintiff sets forth such “alternative practices,” they must be “equally effective” as the employer’s chosen practice. Id., 109 S.Ct. at 2127. Further, the costs or “other burdens” of the alternative practices are relevant factors in “determining whether they would be equally as effective as the challenged practice in serving the employer’s legitimate business goals.” Id. (internal quotation marks omitted) (quoting Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 998, 108 S.Ct. 2777, 2790, 101 L.Ed.2d 827 (1988)). 2. Analysis The Government contends that summary judgment is warranted in its favor on the issue of whether Warren’s preapplication residency requirement violated Title YII by having a disparate impact on black job applicants for municipal positions with the City. a. Prima facie case First, the Government asserts that it has, as a matter of law, made out a prima facie case of discrimination with regard to the challenged preapplication residency requirement. The Government relies (as it most likely must) on statistical data in support of its assertion. Briefly stated the Government relies on the following statistical sources: the 1980 federal census, more specifically the 1980 Bureau of Census Reports, General Social and Economic Characteristics, PC 80-1-C15 (Michigan), Section 1, Tables 120 and 134; various other census documents; 105 1984 EEO-1 reports filed by private employers in Warren; and applicant flow data forms and other data supplied by Warren. The Government also relies upon expert interpretation of these statistical sources." }, { "docid": "5433409", "title": "", "text": "argues that many of the private sector jobs result from transfers from and consolidations of manufacturing facilities located outside of the City. Id., at pp. 34-35. Warren contends that these factors significantly contribute to the 15.5% private black labor force and thus it is not proper to compare the private labor force with the City labor force. Id. at pp. 33-36. The Court rejects Warren’s arguments. While it may well be true that there are blacks who are in the private labor force who would not work as municipal employees because of the lower wages paid to the municipal employees or because they would be required to move into the City of Warren, nevertheless this does not, and cannot, explain the total absence of blacks in the City’s labor force. These factors may reduce the number of “victims,” if any, but they do not refute the fact that the statistical data relied upon by the Government is evidence that the prehiring residency requirement had a disparate impact. The Court finds further support for this conclusion from the applicant flow data discussed earlier. As the U.S. Supreme Court stated in Hazelwood School District v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977): “Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Id., 433 U.S. at 307-308, 97 S.Ct. at 2741. In this Court’s opinion, such “gross statistical disparities” exist in this case. In sum, this Court concludes that the Government has made out a prima facie showing of disparate impact as to Warren’s use of the preapplication residency requirement. b. Business justification and alternatives The Government asserts that, “as a matter of law,” Warren cannot offer a valid business justification for its use of the preapplication residency requirement. As justification for its use of the preap-plication residency requirement Warren offers the argument of good faith. That is to say, Warren argues that it initially adopted and then maintained the residency requirement because state law mandated the use of such" }, { "docid": "5433430", "title": "", "text": "than unusual practice,” Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855, the Government contends that it is not in dispute that the requirement was used by Warren \"for all applicants for all jobs over the relevant time periods.” Plaintiff United States’ Renewed Motion for Partial Summary Judgment, at p. 7, n. 15. The Court agrees with this assertion, noting that Warren cannot seriously contend that it did not apply the residency requirement when it was still in effect. . In arriving at its conclusion, this Court accepts as accurate the statistical data submitted by the Government in support of its motion and renewed motion for summary judgment. For the reasons which follow, this Court rejects Warren’s argument that such statistical data is \"flawed” and thus should not be used or relied upon by this Court to establish discrimination on the basis of disparate impact. . See also Attachments 2 and 3, Attachment to brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment. . The Court notes that Warren's statistical approach is more specific than the Government’s —it seeks to set forth and analyze the number of blacks in the relevant workforce who were actually qualified for municipal jobs in the City. Further, the Court is mindful of the Supreme Court’s comments regarding statistics in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989): There is no doubt that ”[w]here gross statistical disparities can be shown, they alone in a proper case may constitute prima facie proof of a pattern or practice of discrimination\" under Title VII. Hazelwood School Dist. v. United States, 433 U.S. 299, 307-308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977). But it is equally clear that ”[w]hen special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value.” Id., at 308, n. 13, 97 S.Ct., at 2742, n. 13. See also Mayor v. Educational Equality League, 415 U.S. 605, 620, 94 S.Ct. 1323," }, { "docid": "5433401", "title": "", "text": "In summarizing this data for purposes of supporting its assertion that it has shown a prima facie case of discrimination, the Government states: The statistical evidence in this case, ..., establishes that Warren’s use of dura-tional preapplication residency requirements at least substantially caused Warren’s having zero (0) black employees among its 1,500 municipal employees at the time the United States filed suit. At the time suit was filed, Warren had virtually no blacks (approximately 188 or 0.2%) in its resident civilian labor force of 80,992 people. Consequently, Warren’s durational preapplication residency requirement reduced the number of blacks eligible for municipal jobs from the maximum of 344,294, the number of blacks in the civilian labor force in the Detroit SMSA [“Standard Metropolitan Statistical Area”], to 188, the number of resident blacks in Warren’s civilian labor force, thus virtually barring all blacks from consideration for employment with Warren. Such an impediment is precisely the kind of “artificial, arbitrary and unnecessary barrier” to employment that Congress sought to eliminate in enacting Title VII. Griggs [v. Duke Power Co., 401 U.S. at 422 [424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971)]. Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment at p. 10 (footnote omitted). In further support of its assertion that it has made out the required prima facie showing the Government cites the following cases: United States v. Cicero, 786 F.2d 331 (7th Cir.1986); NAACP v. Harrison, 749 F.Supp. 1327 (D.N.J.1990); and United States v. Elmwood Park, 43 Fair Empl.Prac.Cas. (BNA) 995, 1987 WL 9586 (N.D.Ill.1987). Warren does not offer much argument in response to the Government’s claims in its current responsive pleadings to the Government’s renewed summary judgment motion. Rather, Warren relies on the arguments it presented in response to the Government’s original motion for summary judgment. Additionally, Warren does not dispute the numerical accuracy of the statistical data relied upon by the government. Rather, Warren contends that such statistical data is “flawed” and thus cannot be relied upon to establish a prima facie case of discrimination. Summarized, Warren basically argues that the Government’s Title" }, { "docid": "5433408", "title": "", "text": "the relevant workforce who could have or would have applied for the municipal jobs in Warren if there had been no preap-plieation residency requirement. However, as the Supreme Court stated in Wards Cove, “in cases where such [specific] labor market statistics will be difficult, if not impossible to ascertain, ... certain other statistics — such as measures indicating the racial composition of ‘otherwise-qualified applicants’ for at-issue jobs — are equally probative for this purpose.” Wards Cove, 109 S.Ct. at 2121. The Court rejects Warren’s argument that the Government statistical data is flawed. Warren argues, for example, that a comparison of the City’s private work force (15.5% black) with the City’s municipal’s work force (0% black) is improper because private sector jobs pay significantly more in wages and fringe benefits than do City jobs. See City of Warren’s [original] Motion to Dismiss or for Summary Judgment, at pp. 33-34. Second, Warren argues that private sector jobs do not have the “disadvantage” of a post-hiring residency requirement that City jobs do. Id. at p. 35. Third, Warren argues that many of the private sector jobs result from transfers from and consolidations of manufacturing facilities located outside of the City. Id., at pp. 34-35. Warren contends that these factors significantly contribute to the 15.5% private black labor force and thus it is not proper to compare the private labor force with the City labor force. Id. at pp. 33-36. The Court rejects Warren’s arguments. While it may well be true that there are blacks who are in the private labor force who would not work as municipal employees because of the lower wages paid to the municipal employees or because they would be required to move into the City of Warren, nevertheless this does not, and cannot, explain the total absence of blacks in the City’s labor force. These factors may reduce the number of “victims,” if any, but they do not refute the fact that the statistical data relied upon by the Government is evidence that the prehiring residency requirement had a disparate impact. The Court finds further support for this conclusion" }, { "docid": "5433410", "title": "", "text": "from the applicant flow data discussed earlier. As the U.S. Supreme Court stated in Hazelwood School District v. United States, 433 U.S. 299, 308, 97 S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977): “Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Id., 433 U.S. at 307-308, 97 S.Ct. at 2741. In this Court’s opinion, such “gross statistical disparities” exist in this case. In sum, this Court concludes that the Government has made out a prima facie showing of disparate impact as to Warren’s use of the preapplication residency requirement. b. Business justification and alternatives The Government asserts that, “as a matter of law,” Warren cannot offer a valid business justification for its use of the preapplication residency requirement. As justification for its use of the preap-plication residency requirement Warren offers the argument of good faith. That is to say, Warren argues that it initially adopted and then maintained the residency requirement because state law mandated the use of such a requirement (at least as to police and firefighter positions). Additionally, Warren argues that it adopted the residency requirement because: [T]he City Council believed that, by requiring an applicant to live in the City as a precondition to obtaining employment, the applicant would have a stake in the community and thus greater incentive to provide better work performance, because as a member of the community (s)he would benefit directly from the services rendered. Another benefit was the increased morale of the City residents, as recipients of improved services and of municipal employment opportunities. Additionally, the City Council believed that the durational residency requirement would have economic benefits: the rise in the number of residents caused by the residency requirement would increase the City’s tax base and thus reduce the tax burden of each of the City’s residents; and the greater number of residents would also generate increased spending and stimulate the City’s economy. Furthermore, the City Council believed that a City employee would render more capable and efficient performance if the employee had a greater" }, { "docid": "5433425", "title": "", "text": "may be true, but the cases Warren derives them from are distinguishable from the present matter because they generally involve situations where the EEOC waited an inordinately long time to bring suit against a defendant employer after it had first learned of the employer’s Title VII violation. See, e.g., EEOC v. Alioto Fish Co., 623 F.2d 86, 88-89 (9th Cir.1980) (EEOC action against employer barred by laches where EEOC brought Title VII claim against employer sixty-two months after employee had filed initial charge with EEOC). Further, Warren’s reliance on Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977), is not persuasive. All Occidental Life stands for is the general proposition that an inordinate delay by the EEOC in bringing a Title VII action against an employer may require a denial of backpay relief as a remedy. Id., 432 U.S. at 373, 97 S.Ct. at 2458. Additionally, this Court is not convinced that the Government waited an unreasonably long time before it filed its suit against Warren. Warren has not disputed the Government’s claim that it began investigating Warren’s employment practices in early 1986, notified Warren of the investigation and its conclusions in 1986, and filed suit in 1986. Further, Warren’s argument that the Government should have challenged the City’s employment practices as early as 1972 (when Title VII was made applicable to public employers) is ludicrous. If this argument were accepted, then the Government would, in effect, be required to almost instantly discover and prosecute Title VII violations among the thousands of employers in the United States. In sum, this Court concludes that retroactive relief is appropriate if the Government can bring forward identifiable victims who can prove they were victims of the discrimination (via disparate impact) brought about by Warren’s use of the preapplication residency requirement. IV. Conclusion The Court disposes of the respective parties’ motions for summary judgment based on the issues “framed” by the parties at the hearing on September 27, 1990, as follows: A. Did Warren violate Title VII by having a preapplication residency requirement prior to 1986? The" }, { "docid": "5433420", "title": "", "text": "that Warren has never taken a single step to attempt to identify victims of that discriminatory practice, much less provide full, make-whole relief to them. * * * Given these undisputed facts, the City’s other post-1986 actions could not possibly have “completely and irrevocably eradicated the effects of the alleged violation.” Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment, at p. 24. In other words, the Government argues that, even if Warren, in good faith, has sought to eradicate the effects of its Title VII violation, Davis’ second prong, that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” has not been satisfied. This Court concludes that the Government’s arguments as to mootness are well taken. The Court has determined that Warren’s use of the residency requirement violated Title VII under a disparate impact theory. That Warren has, subsequent to its elimination of the requirement, expanded its recruitment efforts, hired blacks into municipal jobs and otherwise sought to correct the Title VII violations, does not mean any prosecution against it for the violations is necessarily moot. As the Supreme Court has stated, “[t]he burden of demonstrating mootness ‘is a heavy one.’ ” Davis, 440 U.S. at 631, 99 S.Ct. at 1383. At this time the Court is not prepared to conclude (as a matter of law) that Warren has met, or can meet this burden via the Davis standard for mootness. To wit, the Court is not satisfied that Warren has met the Davis standard’s second prong, that “interim relief or events have completely and irrevocably eradicated the effects of the alleged [Title VII] violation.” Davis, 440 U.S. at 631, 99 S.Ct. at 1383. As such, the Court concludes that summary judgment in favor of Warren on the issue of mootness must be denied. C. Assuming Warren violated Title VII and the issue is not moot, can a federal judge determine whether relief [i.e., injunctions and make whole relief to victims of the Title VII violation] is appropriate? Title VII at 42 U.S.C. § 2000e-5(g), in relevant part, provides" }, { "docid": "5433418", "title": "", "text": "that “there is no reasonable expectation ...” that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id., 440 U.S. at 631, 99 S.Ct. at 1383 (citations omitted). The Court reasoned: “When both conditions are satisfied it may be said that the case is moot because neither party has a legally cognizable interest in the final determination of the underlying questions of fact and law.” Id. The Court further stated: “The burden of demonstrating mootness ‘is a heavy one.’ ” Id. (emphasis added) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953)). Warren asserts that it has met both of the standards set forth in Davis because it has endeavored to eradicate any effects the residency requirement may have had on blacks with regard to the City’s recruitment (and hiring) efforts. In support of this assertion Warren details its recruitment efforts subsequent to its repeal of the residency requirement, to wit: elimination of hiring eligibility lists compiled while the residency requirement was still in effect; advertising job openings in the Detroit Free Press; sending job notices to the MESC as well as local colleges and universities; advertising in the Michigan Chronicle and on WJLB radio; hiring sixty-two blacks; and, implementing an EEO plan as well as a racial harassment plan. See Defendant City of Warren’s Brief as to why Judgment Should be Entered in its Favor, at pp. 18-20; Defendant’s Supplemental Brief in Support of Renewed Motion for Summary Judgment and in Opposition to Plaintiff’s Renewed Motion for Summary Judgment, at pp. 4, 10-11; Reply Brief in Support of City of Warren’s Motion to Dismiss or for Summary Judgment, at pp. 5-7. The Government contests the correctness of Warren’s mootness arguments. In essence, the Government argues that Warren has not met the standards of Davis because: ([Ajssuming [a Title VII violation] to have occurred ...), the City has never even attempted to identify and compensate victims of its discriminatory dura-tional preapplication residency requirement; indeed, it is undisputed" }, { "docid": "5433416", "title": "", "text": "residency requirement for police and firefighter positions, this Court notes that such a requirement was not an absolute legal requirement. Under Michigan law, Warren did not have to adopt the police and firefighter residency requirement. See Mich. Comp.Laws Ann. § 38.517a (requiring that provisions of Act 78 cannot go into effect until a majority of electors in the municipality approve its adoption). Further, once having adopted Act 78, Warren could have sought its repeal. Mich.Comp.Laws Ann. § 38.518 (allowing for rescission of a municipality’s adoption of the provisions of Act 78). Additionally, Act 78 only applied to police and firefighter positions; it did not apply to other municipal jobs. In sum, the Court finds unpersuasive Warren’s proffered business justifications for its use of the preapplication residency requirement. The Government has proven that there were alternatives available to Warren, other than such a requirement, which could have served to achieve the goals stated by Warren as part of its decision to use the residency requirement. c. Conclusion as to the Government’s disparate impact claim This Court concludes that Warren’s preapplication residency requirement had a disparate impact on blacks and, thus, violated § 703(a)(2) of Title VII. The Court grants summary judgment in favor of the Government on its claim that Warren’s preapplication residency requirement had a disparate impact on blacks in violation of Title VII. B. Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren’s actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue [issue “A”] moot? Warren argues that, even if it violated Title VII by having a preapplication residency requirement prior to 1986, its actions subsequent to that time have rendered moot any claim the Government may have against it as to the Title VII violation. As support for its argument Warren mainly relies on County of Los Angeles v. Davis, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). In this case, the Supreme Court stated that a case may become moot when: (1) it can be said with assurance" }, { "docid": "5433404", "title": "", "text": "disparate impact with regard to Warren’s use of the preapplication residency requirement. The statistical evidence introduced by the Government, the expert analysis showing a large standard deviation, the recent applicant flow data, and the case law cited by the Government, support the Government’s disparate impact claim. Information relating to the standard deviation is provided in Attachment 1, Attachments to Brief in Support of Plaintiff United States’ Renewed Motion for Partial Summary Judgment. This Attachment contains the “Declaration of Martha Aylas Dusenberry.” In her Declaration, Dusen-berry states the following: (1) that she is a “Mathematical Statistician” employed by the Department of Justice; (2) that she has examined the statistical evidence gathered by the Government in support of its case against Warren; (3) that she has used such information to calculate the “statistical disparities” between the number of blacks actually employed by Warren at the time suit was filed and the number of blacks expected to be employed based on a civilian labor force that is 6.6% black; (4) that the number of blacks expected to be employed by Warren, at the time of suit, is/was 99; (5) that at the time of suit Warren employed 0 blacks; (6) that the disparity between the observed number of blacks employed by Warren, 0, and the expected number, 99, is equal to 10.3 “standard deviation units”; and (7) that the likelihood of a statistical disparity of 10.3 standard deviations occurring by chance is 1 in 10 24, or “0” (none). If this standard deviation is accurate, i.e. not “flawed”, even Warren would concede its significance in tending to show discrimination. Under settled principles, statistical evidence reflecting an alleged under-representation of a protected class in a sample that includes protected and non-protected constituents (binomial distribution) suggests purposeful discrimination only if the disparity between the “expected value” and the “observed number” exceeds two or three standard deviations. Castenada [Castaneda] v. Partida, 430 U.S. 482, 496 n. 15, 97 S.Ct. 1272, 1281, 51 L.Ed.2d 498 (1977). Warren’s Motion to Dismiss or for Summary Judgment, at pp. 28-29. With respect to the recent applicant flow data relied upon" }, { "docid": "5433426", "title": "", "text": "not disputed the Government’s claim that it began investigating Warren’s employment practices in early 1986, notified Warren of the investigation and its conclusions in 1986, and filed suit in 1986. Further, Warren’s argument that the Government should have challenged the City’s employment practices as early as 1972 (when Title VII was made applicable to public employers) is ludicrous. If this argument were accepted, then the Government would, in effect, be required to almost instantly discover and prosecute Title VII violations among the thousands of employers in the United States. In sum, this Court concludes that retroactive relief is appropriate if the Government can bring forward identifiable victims who can prove they were victims of the discrimination (via disparate impact) brought about by Warren’s use of the preapplication residency requirement. IV. Conclusion The Court disposes of the respective parties’ motions for summary judgment based on the issues “framed” by the parties at the hearing on September 27, 1990, as follows: A. Did Warren violate Title VII by having a preapplication residency requirement prior to 1986? The Court having answered this question in the affirmative does therefore grant summary judgment in favor of the government on this issue. B. Assuming Warren violated Title VII by having a preapplication residency requirement prior to 1986, did Warren’s actions to eliminate that preapplication residency requirement, to eliminate eligibility lists, and to expand its recruitment render the issue moot? The Court having concluded that it cannot, based on the record before it, decide this issue as a matter of law, Warren’s Motion for Summary Judgment on this issue is therefore denied. C.Assuming Warren violated Title VII and the issue is not moot, can a federal judge determine whether relief is appropriate? The Court having answered this question in the affirmative, the Court must therefore deny Warren’s Motion for Summary Judgment on this issue. An Order consistent with this Opinion shall issue forthwith. . The Court recognizes that the government is also suing Warren for violation of the State and Local Fiscal Assistance Act of 1972, as amended, 31 U.S.C. § 6716 (“Revenue Sharing Act”). See Government’s" } ]

[ { "docid": "14343212", "title": "", "text": "Second Liberty Bond Act, provided that “the notes herein authorized” may be issued “exempt, both as to principal and interest, from all taxation (except estate or inheritance taxes),” and pursuant to subdivision (b) (2) graduated income taxes might also be excepted. The use of the same words of exemption in different sections of the same statute with an expressly declared exception in one case and not in the other, is a strong indication that the Congress thought the exception necessary in order to exclude estate and inheritance taxes from the broad words of the exemption provision. And this is borne out by the remarks of Senator Simmons, chairman of the Senate Finance Committee, in connection with section 3 of the Fourth Liberty Bond Act as reported in 56 Congressional Record 8691. It is further substantiated by the proposal of Congressman Parker of New Jersey to eliminate the qualifying words “except estate or inheritance taxes” from section 1 of the Victory Liberty Loan Act as an inducement to wealthy investors to lend their money to the United States. The discussion and rejection of this amendment is evidence that the members of the House were aware that the inclusion or omission of this exception clause was controlling upon whether or not the exemption embraced the estate tax. And the omission of the exception in section 4 which came up before the House immediately after the vote on the Parker amendment must therefore be regarded as evidence of a deliberate intention to make the exemption applicable to the estate tax in the case of bonds, notes and certificates of indebtedness of the United States beneficially owned by nonresident aliens. As early as 1920 the Internal Revenue Bureau had taken the position that United States bonds held in trust for a nonresident alien at the time of his death should not be included in the decedent’s gross estate for the purpose of the estate tax. And on January 5, 1928 shortly after Judge Knox’s decision in Farmers’ Loan & Trust Co. v. Bowers, D.C.S.D.N.Y., 22 F.2d 464, that United States bonds owned by a" } ]

[ { "docid": "22573046", "title": "", "text": "intended federal housing obligations to be exempt only from the normal tax. Yet as the normal tax and the surtax were both direct, simply making the federal obligations “exempt from all taxation” would exempt too much. Thus, Congress “excepted” surtaxes from the exemption. But that exception, if left by itself, would have created its own anomaly: the strict application of the rule “expressio unius est exclusio alterius” — i. e., the expression of one is the exclusion of others — would have resulted in exempting these obligations from all taxes, direct or indirect, except the surtax. To avoid that particular pitfall, Congress also excepted estate, inheritance, and gift taxes from § 20(b). Such language was commonplace when Congress sought to exempt items from the normal tax, but not the surtax. E. g., Home Owners’ Loan Act of 1933, § 4(c), 48 Stat. 130; Farm Credit Act of 1933, § 63, 48 Stat. 267. In contrast, § 5(e) needed no parenthetical exception. Congress fully intended Project Notes to be exempt from surtaxes as well as normal taxes, and thus exempting them “from all taxation” stated with precision the congressional will. We cannot attribute to Congress an intent to break new ground in tax law by cleverly hiding an estate tax exemption, discernable only by comparing two unrelated provisions of the Housing Act. Nor would it make sense for Congress to legislate in such a bizarre fashion. If Congress really wanted to create an especially broad tax exemption for Project Notes, as appellees assert, one would expect it to do so notoriously enough to attract investors, not surreptitiously enough to evade detection for half a century. Appellees’ second indicator of congressional intent is a statement made by Senator Walsh during the floor debate. In the midst of a lengthy speech, he stated: “Obligations, including interest thereon, issued by public housing agencies, . . . are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income" }, { "docid": "14809616", "title": "", "text": "penalty, then the payment may constitute a preference, if the other elements of a preference are present. In that case, the tax debt would be an antecedent debt and would not fall under this exception. However, the trustee would be able to recover only if the taxing authority did not have sovereign immunity or had waived it under proposed 11 U.S.C. 106. The House bill was then sent to the Senate, which had been drafting its own legislation. Instead of simply amending H.R. 8200 to conform to that legislation, the Senate passed its own bill (S. 2266) and substituted it for the House version. Unlike the House, the Senate specifically protected taxing authorities. Section 541(b)(3) of the Senate bill would have excluded from the debtor’s estate any “taxes withheld or collected from others pursuant to Federal, State, or local law before the commencement of the case and required to be paid to a governmental unit.” Furthermore, in section 547(b)(2), the Senate totally exempted from the preference rules any pre-petition tax payments by the debtor: “the trustee may avoid any transfer of property of the debtor ... for or on account of an antecedent debt, other than a debt for which payment is required under the revenue laws of a governmental unit, owed by the debtor before such transfer was made.” Because the Senate bill incorporated many of the same provisions found in the House bill, the Senate Report largely tracks that of the House, departing only on occasion. The Senate Report’s commentary on section 541 and estate property is virtually identical to that in the House Report, and includes the latter’s statement that “[t]his section ... will not affect various statutory provisions ... that create[ ] a trust fund for the benefit of a creditor of the debtor.” Concerning the preference rules under section 547, however, substantial differences exist. The paragraph in the House Report relating to estimated tax payments and withheld taxes was deleted, and in its place was inserted the comment that “[s]ubsection (b)(2) of this section in effect exempts from the preference rules payments by the debtor" }, { "docid": "22573047", "title": "", "text": "taxes, and thus exempting them “from all taxation” stated with precision the congressional will. We cannot attribute to Congress an intent to break new ground in tax law by cleverly hiding an estate tax exemption, discernable only by comparing two unrelated provisions of the Housing Act. Nor would it make sense for Congress to legislate in such a bizarre fashion. If Congress really wanted to create an especially broad tax exemption for Project Notes, as appellees assert, one would expect it to do so notoriously enough to attract investors, not surreptitiously enough to evade detection for half a century. Appellees’ second indicator of congressional intent is a statement made by Senator Walsh during the floor debate. In the midst of a lengthy speech, he stated: “Obligations, including interest thereon, issued by public housing agencies, . . . are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift, and inheritance taxes.” 81 Cong. Rec. 8085 (1937). If, as appears from the statement’s structure, the Senator intended to offer a definition of “tax-exempt bonds,” then we must conclude that he misspoke, for as we have already demonstrated, tax-exempt bonds were presumed to be exempt only from direct taxes. Even if, as appellees assert, the Senator intended to refer solely to Project Notes, we do not deem his statement compelling in this case. The relevant passage comes in the middle of a long speech, and no similar expression is to be found in any other legislative debate or document. This short, isolated comment simply cannot overcome the understood meaning of §5(e) and the presumption against implied tax exemptions. Appellees also assert that Congress’ intent can be discerned by reference to a rejected administration housing proposal, which contained in its analogue to §5(e) an express statement that Project Notes would be subject to estate taxes. We are unpersuaded by appellees’ contention that the Finance Committee’s decision not to include a similar express" }, { "docid": "18321322", "title": "", "text": "Labor. See 81 Cong.Rec. 8086-8088 (1937). During the 1937 hearings on the Wagner Housing Bill, then Secretary of Interior Harold L. Ickes proposed an alternate bill. The Ickes bill, which the Senate Committee on Education and Labor rejected; differed in many substantive respects from the Wagner bill, as to some of which Secretary Ickes gave testimony before the Senate Committee. The Ickes bill contained a section 20(b) identical to that in the 1937 Act. Ickes’ section 5(e), however, — unlike the 1937 Act — contained the same excepting language as that in section 20(b). Ickes offered no testimony to explain this relatively minor aspect of his proposed changes to the Wagner bill. The executors’ argument is that Congress’ inclusion in the 1937 Act of an exception for estate and other taxes in the exemption from taxation for Authority obligations, section 20(b), with no corresponding exception in the exemption for public housing agency obligations, section 5(e), indicates an intention that the latter obligations be exempt from the forms of taxation listed in the exception clause for the former. First, Congress ordinarily is presumed not to have used language idly: statutes are to be construed so as to give operative effect to every clause. See e.g. Adler v. Northern Hotel Co., 175 F.2d 619, 621 (7th Cir.1949) (citing Market Co. v. Hoffman, 101 U.S. 112, 115-16, 25 L.Ed. 782 (1879)); American National Bank Co. v. Dallas County, — U.S. -, 103 S.Ct. 3369, 3375, 77 L.Ed.2d 1072 (1983). Second, all the sections of a single statute should' be presumed to have been drafted with reference one to another; the whole statute is the context for construction of any of its individual sections. See e.g. United States v. American Trucking Associations, 310 U.S. 534, 542-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940). Thus, the executors contend that the estate tax exception in the section 20(b) exemption must have operative effect to avoid violation of the first-stated rule of statutory construction. Congress, it is argued, felt it necessary to retract, by the exception clause, the exemption from estate taxation which — Congress must" }, { "docid": "18321320", "title": "", "text": "which is authorized to engage in the development or administration of low-rent housing or slum clearance.” Section 2(11). Section 1 of the 1937 Act stated that the purpose of the legislation was to make available funds and credit to assist State and local governments in the provision of low income housing and the eradication of “slum” areas. To accomplish the objective, the Authority was authorized, within limits and under certain conditions, to provide loans to local public housing agencies “to assist the development, acquisition or administration of low-rent-housing or slum clearance projects by such agencies.” Section 9. The Authority also had the power to make “annual contributions” to such agencies for the same purposes, section 10, and, as an alternative funding mechanism, to provide “capital grants” to the agencies in connection with the acquisition or development of housing projects or “slum clearance” programs, section 11. The primary importance of local participation in the national housing endeavor was recognized in section 12 of the 1937 Act, which directed the Authority to seek to transfer ownership and management responsibility for low income housing projects to the local agencies. Section 5(e) of the 1937 Act described the tax treatment of obligations. of “public housing agencies”, of which the decedent’s Project Notes are an example: Obligations, including interest thereon issued by public housing agencies in connection with low-rent housing or slum-clearance projects, and the income derived from such projects, shall be exempt from all taxation now or hereafter imposed. (Emphasis supplied.) Section 20(a) of the 1937 Act authorized the Authority to issue obligations and section 20(b) described the tax treatment of those obligations: Such obligations, shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed by the United States or by any State, county, municipality, or local taxing authority. (Emphasis supplied.) The emphasized divergence in the wording of sections 5(e) and 20(b) of the 1937 Act is reflected in the section by section summary of the Wagner Housing Bill, S.B. 1685, that was prepared by the Senate Committee on Education and" }, { "docid": "18321325", "title": "", "text": "implausible in some a priori fashion, and there is no reason why, either in general or with particular reference to section 11(b), we should strive to avoid it. The question is simply whether, giving heed to the canons of statutory construction, we can conclude that Congress wished Murdock not to apply to public housing agency obligations. It is fundamental to the Constitutional separation of powers principle that Congress be presumed to have drafted legislation conscious of the effect of its language. When, in the 1937 Act, Congress wished to exclude estate and other excise taxes from the ambit of a taxation exemption, it did so in unambiguous terms. Section 20(b). That Congress did not provide for any exception in the section 5(e) exemption — when it plainly knew how to do so — is powerful evidence that it wished that exemption broadly and literally to cover “all” forms of federal taxation. In fact, this is precisely what Senator Walsh, a sponsor of the 1937 Act, declared that the section 5(e) exemption was intended to accomplish: Obligations, including interest thereon, issued by public housing agencies, and income derived by such agencies on such projects are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift and inheritance taxes. 81 Cong.Rec. 8085 (1937) (emphasis added). Senator Walsh was “discussing every financial feature” of the proposed legislation. Ibid. Indeed, his statement with respect to public housing agency obligations may fairly be read as containing an ellipitical reference to the section 20(b) exception of “surtaxes, estate, inheritance, and gift taxes.” The government argues that Senator Walsh’s statement, in light of Murdock, should be dismissed as an uninformed or inaccurate commentary on the scope of the section 5(e) exemption. We have weighed the possibility that Senator Walsh, as the government would have it, “misspoke.” We. doubt that Senator Walsh let slip a description of section 5(e) that he did not intend; his words are" }, { "docid": "23487465", "title": "", "text": "interest on federal bonds and intracorporate dividends. Section 804 (a) (2) permits deduction of the company’s nontaxed share of these items along with interest on exempt bonds. H. R. Rep. No. 34, 86⅛ Cong., 1st Sess., 28-29, 31. See Hearings on H. R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 45-46, 48, 121, 187, 248-266, 304r-318, 404-409, 516-518, 613-614, 694-699, 700-702. Id., at 19-60, 646-654. S. Rep. No. 291, 86th Cong., 1st Sess., 6. As stated in the Senate Report on H. R. 4245, the Committee on Finance was of the opinion that the formula provided in §804 did not impose a tax on tax-exempt interest — “[t]he purpose of your committee in providing this treatment is to exempt a life insurance company from tax on any tax-exempt interest . . . .” S. Rep. No. 291, 86th Cong., 1st Sess., 17. See also pp. 6, 18, 46. Senator Byrd in explaining the bill to the Senate presented a letter from the Department of the Treasury which said that the formula provided by the bill did not place a tax on exempt interest, that the additional language of § 804 (a)(6) establishing an exception was not at all necessary but that just to make sure it had been provided that in any case the formula resulted in taxing interest excludable under § 103, an adjustment would be made. 105 Cong. Rec. 8402. The more detailed explanation of the bill by Senator Byrd was to the same effect. 105 Cong. Rec. 8404. Senator Curtis, a member of the Senate Committee, delivered a comprehensive speech in support of the bill in the course of which he said that his earlier concern about inadvertently taxing exempt interest had been fully met by the bill. After reviewing the formula, with examples illustrating its operation and without mentioning the exception of § 804 (a) (6) he remarked that “no tax-exempt income or credits of life insurance companies will be included in the tax base of such companies, under this bill. This should allay any fear that any constitutional provision is transgressed.”" }, { "docid": "18321331", "title": "", "text": "cost housing development which the 1937 Act envisaged, see e.g. section 12 of the 1937 Act. Although the importance of the decentralization policy in general is apparent on the face of the statute and in its legislative history, there is nothing in the legislative history to support the proposition that Congress considered differing tax treatment for local and federal obligations in particular, as a way to achieve 'that policy. It is also possible that Congress felt complete tax exemption was necessary to enable local housing agencies to sell their bonds at the lowest possible price but not necessary for Authority bonds. We recognize that Jandorf presented a more clearly documented case of a deliberate Congressional decision to accord differing tax treatment to United States and foreign-held bonds. While that may be true, it is not a sufficient basis for distinguishing Jandorf. We have, in effect, the choice of ascribing the difference in the wording of sections 20(b) and 5(e) to simple inadvertance or to considered policy determination by Congress. Where there is a plausible basis for the difference which is consistent with the overall legislative scheme and expressed general intentions of Congress, we are bound to prefer the latter alternative. On the whole legislative record, including the striking difference in the wording of sections 5(e) and 20(b), Senator Walsh’s statement, and the rejection of Secretary Ickes proposal to make the wording of section 5(e) the same as section 20(b), the Congressional intent in 1937 is clear that public housing agency obligations are to be exempt from estate and inheritance taxation. United States Trust Co., Murdock and Treas.Reg. 20.2033-1 state a “general” principle that is not applicable in the face of clear evidence of a contrary Congressional intent in a particular instance. Whatever the force of an exemption from “all taxation” in general and without more, we conclude that section 5(e) of the 1937 Act was intended to provide an estate tax exemption. Since 1937, the provisions for federal assistance to local, low-income housing projects have undergone substantial revision, primarily in 1949 and 1974. See The Housing Act of 1949, Pub.L." }, { "docid": "18321326", "title": "", "text": "Obligations, including interest thereon, issued by public housing agencies, and income derived by such agencies on such projects are to be exempt from all taxation now or hereafter imposed by the United States. In other words, the bill gives the public housing agencies the right to issue tax-exempt bonds, which means they are free from income tax, surtax, estate, gift and inheritance taxes. 81 Cong.Rec. 8085 (1937) (emphasis added). Senator Walsh was “discussing every financial feature” of the proposed legislation. Ibid. Indeed, his statement with respect to public housing agency obligations may fairly be read as containing an ellipitical reference to the section 20(b) exception of “surtaxes, estate, inheritance, and gift taxes.” The government argues that Senator Walsh’s statement, in light of Murdock, should be dismissed as an uninformed or inaccurate commentary on the scope of the section 5(e) exemption. We have weighed the possibility that Senator Walsh, as the government would have it, “misspoke.” We. doubt that Senator Walsh let slip a description of section 5(e) that he did not intend; his words are straightforward, unambiguous and emphatic. Whether Senator Walsh or any other member of the 75th Congress knew of Murdock or felt compelled explicitly to reject its applicability to local public housing agency obligations is not directly relevant to the meaning of section 5(e). Murdock simply states a principle of statutory construction to be applied in the absence of a contrary Congressional intent. Murdock is not, as the government would have it, “overruled” by Congress’ expression of such an intention. The question before us is simply whether there is a “strong indication” in the statute and its legislative history that Congress intended the 5(e) exemption to apply to the federal estate tax. See Jandorf s Estate v. Commissioner, supra. In light of the striking and otherwise unexplained difference in the wording of the section 20(b) and section 5(e) exemption provisions and in light of the unambiguous and unquestioned declaration of Senator Walsh, it is virtually beyond argument that such a “strong indication” is present in the 1937 Act. The Jandorf case is practically on all fours with" }, { "docid": "22573048", "title": "", "text": "tax, surtax, estate, gift, and inheritance taxes.” 81 Cong. Rec. 8085 (1937). If, as appears from the statement’s structure, the Senator intended to offer a definition of “tax-exempt bonds,” then we must conclude that he misspoke, for as we have already demonstrated, tax-exempt bonds were presumed to be exempt only from direct taxes. Even if, as appellees assert, the Senator intended to refer solely to Project Notes, we do not deem his statement compelling in this case. The relevant passage comes in the middle of a long speech, and no similar expression is to be found in any other legislative debate or document. This short, isolated comment simply cannot overcome the understood meaning of §5(e) and the presumption against implied tax exemptions. Appellees also assert that Congress’ intent can be discerned by reference to a rejected administration housing proposal, which contained in its analogue to §5(e) an express statement that Project Notes would be subject to estate taxes. We are unpersuaded by appellees’ contention that the Finance Committee’s decision not to include a similar express reference to the estate tax indicates a desire to exempt Project Notes from that tax. Equally plausible is that the Committee omitted the express exception as unnecessary. Further, neither the administration, the Finance Committee, nor even a single Senator considered this difference worthy of comment, although numerous other variations between the two proposals received attention. Finally, appellees point to a statement Warren J. Vinton, who later became the first Chief Economist of the United States Housing Authority, made to the American Federation of Housing Authorities shortly after the Housing Act was passed. He stated that Project Notes were “exempt from all Federal taxes, not only normal income taxes but surtax, inheritance tax, and gift tax. Investments of that nature are getting rare in the country.” Brief for Appellees Wells Fargo Bank et al. 15 (emphasis added in brief omitted). However, at the time he uttered these words, Vinton was not yet employed by the Housing Authority. We cannot attribute to this isolated comment the aura of a contemporaneous agency interpretation. The understood meaning of §5(e)" }, { "docid": "22573044", "title": "", "text": "278 U. S. 339, 347 (1929) (same). Consistent with this understanding, on the rare occasions when Congress has exempted property from estate taxation it has generally adverted explicitly to that tax, rather than generically to “all taxation.” E. g., Revenue Act of 1934, § 404, 48 Stat. 754, repealed by the Revenue Act of 1962, § 18, 76 Stat. 1052. Placed in context, then, § 5(e) does not stand for appellees’ proposition that Project Notes were intended to be exempt from estate taxes; it stands for exactly the opposite. Appellees attempt to bolster their contrary view with various indicia of an alleged congressional intent. Although these considerations were found compelling in Haffner, we conclude, as did the Tax Court in Estate of Egger v. Commissioner, 89 T. C. 726 (1987), that the factors appellees rely upon, whether considered alone or in combination, are insufficient to demonstrate that Congress intended to exempt Project Notes from estate taxation in contravention of the understood meaning of § 5(e), a demonstration which must be unambiguous under the principle disfavoring implied tax exemptions. Appellees’ first argument centers on § 20 of the Housing Act of 1937, 50 Stat. 898, later repealed, which gave the newly created United States Housing Authority the power to issue bonds and other obligations. Section 20(b) provided that “[s]uch obligations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed . . . .” The familiar argument goes that Congress knew how to limit the scope of the exemption when it wanted to do so; its decision not to include limiting language in § 5(e), in light of an express limitation in § 20(b), demonstrates an intent to exempt Project Notes from estate tax. This argument does not withstand careful scrutiny. In 1937, when the Housing Act was passed, what is now the income tax comprised two parts: a “normal” tax set at a flat 4 percent, and a graduated “surtax” with rates reaching up to 75 percent. As is plain from the face of § 20(b), Congress" }, { "docid": "18321332", "title": "", "text": "for the difference which is consistent with the overall legislative scheme and expressed general intentions of Congress, we are bound to prefer the latter alternative. On the whole legislative record, including the striking difference in the wording of sections 5(e) and 20(b), Senator Walsh’s statement, and the rejection of Secretary Ickes proposal to make the wording of section 5(e) the same as section 20(b), the Congressional intent in 1937 is clear that public housing agency obligations are to be exempt from estate and inheritance taxation. United States Trust Co., Murdock and Treas.Reg. 20.2033-1 state a “general” principle that is not applicable in the face of clear evidence of a contrary Congressional intent in a particular instance. Whatever the force of an exemption from “all taxation” in general and without more, we conclude that section 5(e) of the 1937 Act was intended to provide an estate tax exemption. Since 1937, the provisions for federal assistance to local, low-income housing projects have undergone substantial revision, primarily in 1949 and 1974. See The Housing Act of 1949, Pub.L. 81-171, 63 Stat. 413 (1949); The Housing and Community Development Act of 1974, Pub.L. 93-383, 88 Stat. 653 (1974). The broad contours of the current legislation, which governs the Project Notes in issue here, are parallel to the federal subsidy program established in the 1937 Act. The declaration of policy in 42 U.S.C. § 1437 contains the same general goals as are expressed in section 1 of the 1937 Act. Like the 1937 Act, the current legislation provides for federal loans to state and local public housing agencies, 42 U.S.C. § 1437b, and for federal assistance in the form of annual contributions, 42 U.S.C. § 1437C. The current statute contains far more detailed provisions with respect to the terms of loan and annual contribution contracts, see 42 U.S.C. § 1437d, as well as provision for direct participation of low income individuals themselves, through local public housing agencies, in the federal assistance, see 42 U.S.C. § 1437f, and special provisions for elderly and other special beneficiaries, see 42 U.S.C. § 1437e. Nonetheless, the vision and the" }, { "docid": "18321337", "title": "", "text": "S.Ct. 144, 82 L.Ed. 574 (1937). . Treas.Reg. § 20.2033-1 provides in pertinent part: Various statutory provisions which exempt bonds, notes, bills, and certificates of indebtedness of the Federal Government or its agencies and the interest thereon from taxation are generally not applicable to the estate tax, since such tax is an excise tax on the transfer of property at death and is not a tax on the property transferred. . S.B. 1685 was enacted as the 1937 Act with minor, and not material, modifications. . Senator Walsh was more than a nominal sponsor of the bill. His statement reflects considerable knowledge of the detailed financial and other provisions of the legislation. Moreover, Senator Wagner, who \"drafted the bill, ... introduced it, and ... has been deeply interested in the subject,” 81 Cong.Rec. 8080, was present during Senator Walsh's presentation and commented frequently, correcting Senator Walsh on occasion, see 81 Cong.Rec. 8081. Significantly, Senator Wagner did not dispute Senator Walsh’s characterization of Section 5(e). We find Senator Walsh’s statement an authoritative expression of the Congressional intent. See 2A C. Sands, Sutherland Statutory Construction § 48.15 (4th ed. 1973). . Jandorf has been followed by the Third Circuit and the Tax Court. See Pennsylvania Co. for Banking & Trusts v. United States, 185 F.2d 125 (3d Cir.1950); Lowenstein v. Commissioner, 17 T.C. 60 (1951)." }, { "docid": "18321321", "title": "", "text": "management responsibility for low income housing projects to the local agencies. Section 5(e) of the 1937 Act described the tax treatment of obligations. of “public housing agencies”, of which the decedent’s Project Notes are an example: Obligations, including interest thereon issued by public housing agencies in connection with low-rent housing or slum-clearance projects, and the income derived from such projects, shall be exempt from all taxation now or hereafter imposed. (Emphasis supplied.) Section 20(a) of the 1937 Act authorized the Authority to issue obligations and section 20(b) described the tax treatment of those obligations: Such obligations, shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed by the United States or by any State, county, municipality, or local taxing authority. (Emphasis supplied.) The emphasized divergence in the wording of sections 5(e) and 20(b) of the 1937 Act is reflected in the section by section summary of the Wagner Housing Bill, S.B. 1685, that was prepared by the Senate Committee on Education and Labor. See 81 Cong.Rec. 8086-8088 (1937). During the 1937 hearings on the Wagner Housing Bill, then Secretary of Interior Harold L. Ickes proposed an alternate bill. The Ickes bill, which the Senate Committee on Education and Labor rejected; differed in many substantive respects from the Wagner bill, as to some of which Secretary Ickes gave testimony before the Senate Committee. The Ickes bill contained a section 20(b) identical to that in the 1937 Act. Ickes’ section 5(e), however, — unlike the 1937 Act — contained the same excepting language as that in section 20(b). Ickes offered no testimony to explain this relatively minor aspect of his proposed changes to the Wagner bill. The executors’ argument is that Congress’ inclusion in the 1937 Act of an exception for estate and other taxes in the exemption from taxation for Authority obligations, section 20(b), with no corresponding exception in the exemption for public housing agency obligations, section 5(e), indicates an intention that the latter obligations be exempt from the forms of taxation listed in the exception clause for" }, { "docid": "18321328", "title": "", "text": "this one. At issue there was the tax treatment of Victory Liberty bonds held by a foreign investor, obligations that were authorized by the Victory Liberty Loan Act of March 3, 1919, Pub.L. 65-328, 40 Stat. 1309 (1919). Section 1 of the Victory Liberty Loan Act describes the tax treatment accorded bonds sold to United States investors and section 4 amends a prior act which describes that of bonds sold to foreign investors and purchased with foreign money. The wording of sections 1 and 4 of the Victory Liberty Loan Act is materially identical to that of sections 20(b) and 5(e), respectively, of the 1937 Act. The Second Circuit, in Jandorf, inferred that the purpose of section 4 was to exempt foreign-held bonds from estate and inheritance taxes. The Jandorf court had before it the considered statement of the then chairman of the Senate Finance Committee, similar to the Walsh statement, that that was the result intended by the overall statutory scheme. See 171 F.2d at 466 n. 1. Congress, in connection with passage of the Victory Liberty Loan Act, considered and rejected an amendment proposed by Congressman Parker which, like the Ickes bill with respect to public housing agency obligations, would have made foreign-held bonds subject to the same tax treatment as bonds held by United States citizens. The court concluded: The use of the same words of exemption in different sections of the same statute with an expressly declared exception in one case and not in the other, is a strong indication that the Congress thought the exception necessary in order to exclude estate and inheritance taxes from the broad words of the exemption provisions. 171 F.2d at 466. The government’s attempts to distinguish Jandorf are not persuasive. The government first points to the fact that the Treasury Department had had a longstanding policy of exempting foreign-held Victory Liberty bonds from estate taxation. The Jandorf court did take note of this fact. 171 F.2d at 467. But the issue before the court was Congress’ intention with respect to taxation of the bonds and it is therefore clear that" }, { "docid": "19248436", "title": "", "text": "effect on the tax-exempt status of any organization. An organization which is exempt prior to the enactment of this bill, if continuing the same activities, would still be exempt after this bill becomes law. Sen.Rep.No. 2375, 81st Cong. 2d Sess. 1950, 1950 U.S.Code Cong.Serv., p. 3081; see also H.Rep.No. 2319 (81st Cong., 2d Sess. pp. 36-37). The majority points to various passages in the Senate and House Reports to the effect that the Revenue Act of 1950 was intended to raise revenues as a substitute for the War Excise Taxes being repealed and as a means of supporting additional defense spending. While it is undoubtedly true that the Revenue Act as a whole was designed to raise revenue, the Senate Report states: The bulk of the additional revenue provided under the [Senate] bill will come from the imposition of higher corporate and individual income-tax rates. S.R. 2375, 81st Cong., 2d Sess. 1950, reported at 1950 U.S.Code Cong.Serv. p. 3053. Table I, accompanying Senate Report 2375, strongly supports this statement and indicates that the Senate bill substantially decreased the projected revenue generated by changes in treatment of tax-exempt institutions. Thus it seems that consideration of revenue-raising aspects of the Revenue Act of 1950 ought not to detract from the specific reforms addressed to tax loopholes being used by tax-exempt organizations. The legislative history of the unrelated business income tax provisions clearly establishes that the provisions were enacted with the primary objective of eliminating unfair competition between exempt and non-exempt organizations. This task was accomplished by taxing only income from regularly carried on trades and businesses which would be directly competitive with non-exempt entities. The activities of exempt organizations were not otherwise disturbed. With certain exceptions, it is clear that Congress was not attempting to inhibit the growth of religious, charitable, scientific, educational or fraternal organizations. In 1952 the Commissioner of Internal Revenue adopted regulations interpreting the 1950 legislation. The statutes remained unchanged in any material respects in the recodification of the tax laws into the Internal Revenue Code of 1954 as Sections 511 to 513. The regulations remained substantially unchanged until" }, { "docid": "18321324", "title": "", "text": "have believed — it had granted in the preceding exemption from “all taxation.” Section 5(e) contains no such retraction. Therefore, the argument continues, applying the second rule of statutory construction, Congress must have wanted the section 5(e) exemption to cover estate taxes, else it would have included a corresponding exception in that exemption. That it did not, demonstrates an intention to exempt Project Notes from estate taxation. As further evidence of this intention, the executors point to Congress’ rejection of Secretary Ickes’ version of section 5(e). We approach the issue before us mindful that our task is not merely a mechanical one. As has repeatedly been recognized, the rules of statutory construction are not ends in themselves. They serve rather as a means to get at the intention of Congress. If Jandorf supra, and Greene, supra, stand for anything, it is that a Congressional desire to override Murdock and United States Trust Co. should be clear and unambiguous in order to have effect. The Murdock and United States Trust Co. rule is hardly absurd or implausible in some a priori fashion, and there is no reason why, either in general or with particular reference to section 11(b), we should strive to avoid it. The question is simply whether, giving heed to the canons of statutory construction, we can conclude that Congress wished Murdock not to apply to public housing agency obligations. It is fundamental to the Constitutional separation of powers principle that Congress be presumed to have drafted legislation conscious of the effect of its language. When, in the 1937 Act, Congress wished to exclude estate and other excise taxes from the ambit of a taxation exemption, it did so in unambiguous terms. Section 20(b). That Congress did not provide for any exception in the section 5(e) exemption — when it plainly knew how to do so — is powerful evidence that it wished that exemption broadly and literally to cover “all” forms of federal taxation. In fact, this is precisely what Senator Walsh, a sponsor of the 1937 Act, declared that the section 5(e) exemption was intended to accomplish:" }, { "docid": "22573045", "title": "", "text": "implied tax exemptions. Appellees’ first argument centers on § 20 of the Housing Act of 1937, 50 Stat. 898, later repealed, which gave the newly created United States Housing Authority the power to issue bonds and other obligations. Section 20(b) provided that “[s]uch obligations shall be exempt, both as to principal and interest, from all taxation (except surtaxes, estate, inheritance, and gift taxes) now or hereafter imposed . . . .” The familiar argument goes that Congress knew how to limit the scope of the exemption when it wanted to do so; its decision not to include limiting language in § 5(e), in light of an express limitation in § 20(b), demonstrates an intent to exempt Project Notes from estate tax. This argument does not withstand careful scrutiny. In 1937, when the Housing Act was passed, what is now the income tax comprised two parts: a “normal” tax set at a flat 4 percent, and a graduated “surtax” with rates reaching up to 75 percent. As is plain from the face of § 20(b), Congress intended federal housing obligations to be exempt only from the normal tax. Yet as the normal tax and the surtax were both direct, simply making the federal obligations “exempt from all taxation” would exempt too much. Thus, Congress “excepted” surtaxes from the exemption. But that exception, if left by itself, would have created its own anomaly: the strict application of the rule “expressio unius est exclusio alterius” — i. e., the expression of one is the exclusion of others — would have resulted in exempting these obligations from all taxes, direct or indirect, except the surtax. To avoid that particular pitfall, Congress also excepted estate, inheritance, and gift taxes from § 20(b). Such language was commonplace when Congress sought to exempt items from the normal tax, but not the surtax. E. g., Home Owners’ Loan Act of 1933, § 4(c), 48 Stat. 130; Farm Credit Act of 1933, § 63, 48 Stat. 267. In contrast, § 5(e) needed no parenthetical exception. Congress fully intended Project Notes to be exempt from surtaxes as well as normal" }, { "docid": "18321336", "title": "", "text": "reasons we have expressed above, Congress' intention at that time is fairly clear on the face of the statute and in its legislative history. Conclusion We conclude that the Project Notes listed as items 77 and 78 on Schedule B of the decedent’s Return are not includible and subject to tax under I.R.C. § 2033. Therefore, the plaintiffs motion for summary judgment is granted and the defendant’s cross motion is denied. An order will enter. . Section 11(b) provides in pertinent part: [O]bligations, including interest thereon, issued by public housing agencies in connection with low-income housing projects shall be exempt from all taxation now or hereafter imposed by the United States whether paid by such agencies or by the Secretary. . The general proposition is also stated in two cases that address gift taxability of certain United States Treasury bills. See Hamersley v. United States, 16 F.Supp. 768 (Ct.Cl.1936), cert. denied, 300 U.S. 659, 57 S.Ct. 435, 81 L.Ed. 868 (1937); Phipps v. Commissioner, 91 F.2d 627 (10th Cir.), cert. denied, 302 U.S. 742, 58 S.Ct. 144, 82 L.Ed. 574 (1937). . Treas.Reg. § 20.2033-1 provides in pertinent part: Various statutory provisions which exempt bonds, notes, bills, and certificates of indebtedness of the Federal Government or its agencies and the interest thereon from taxation are generally not applicable to the estate tax, since such tax is an excise tax on the transfer of property at death and is not a tax on the property transferred. . S.B. 1685 was enacted as the 1937 Act with minor, and not material, modifications. . Senator Walsh was more than a nominal sponsor of the bill. His statement reflects considerable knowledge of the detailed financial and other provisions of the legislation. Moreover, Senator Wagner, who \"drafted the bill, ... introduced it, and ... has been deeply interested in the subject,” 81 Cong.Rec. 8080, was present during Senator Walsh's presentation and commented frequently, correcting Senator Walsh on occasion, see 81 Cong.Rec. 8081. Significantly, Senator Wagner did not dispute Senator Walsh’s characterization of Section 5(e). We find Senator Walsh’s statement an authoritative expression of the Congressional" }, { "docid": "18321327", "title": "", "text": "straightforward, unambiguous and emphatic. Whether Senator Walsh or any other member of the 75th Congress knew of Murdock or felt compelled explicitly to reject its applicability to local public housing agency obligations is not directly relevant to the meaning of section 5(e). Murdock simply states a principle of statutory construction to be applied in the absence of a contrary Congressional intent. Murdock is not, as the government would have it, “overruled” by Congress’ expression of such an intention. The question before us is simply whether there is a “strong indication” in the statute and its legislative history that Congress intended the 5(e) exemption to apply to the federal estate tax. See Jandorf s Estate v. Commissioner, supra. In light of the striking and otherwise unexplained difference in the wording of the section 20(b) and section 5(e) exemption provisions and in light of the unambiguous and unquestioned declaration of Senator Walsh, it is virtually beyond argument that such a “strong indication” is present in the 1937 Act. The Jandorf case is practically on all fours with this one. At issue there was the tax treatment of Victory Liberty bonds held by a foreign investor, obligations that were authorized by the Victory Liberty Loan Act of March 3, 1919, Pub.L. 65-328, 40 Stat. 1309 (1919). Section 1 of the Victory Liberty Loan Act describes the tax treatment accorded bonds sold to United States investors and section 4 amends a prior act which describes that of bonds sold to foreign investors and purchased with foreign money. The wording of sections 1 and 4 of the Victory Liberty Loan Act is materially identical to that of sections 20(b) and 5(e), respectively, of the 1937 Act. The Second Circuit, in Jandorf, inferred that the purpose of section 4 was to exempt foreign-held bonds from estate and inheritance taxes. The Jandorf court had before it the considered statement of the then chairman of the Senate Finance Committee, similar to the Walsh statement, that that was the result intended by the overall statutory scheme. See 171 F.2d at 466 n. 1. Congress, in connection with passage of" } ]

[ { "docid": "3811794", "title": "", "text": "Court below also denied as moot SCM’s motion for preliminary injunctive relief and further denied as moot the motions for leave to intervene of two proposed intervenors, Brother Industries, Ltd. and Royal Typewriter Company. II 28 U.S.C. § 1340 (1970) provides: The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. 28 U.S.C. § 1582(b) (1970) provides: (b) The Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended. If the Customs Court has jurisdiction over SCM’s claim pursuant to section 516, then jurisdiction in the Customs Court is exclusive under 28 U.S.C. § 1582(b). However, that exclusive jurisdiction is limited to those claims which can be brought pursuant to section 516. Where no adequate remedy exists in the Customs Court for actions concerning customs matters, the federal district courts have jurisdiction. See, e. g., The Timken Co. v. Simon, supra; J. C. Penney Co. v. Department of Treasury, 439 F.2d 63, 68 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971). It follows that it is necessary to examine section 516 to determine whether SCM’s claim is one which can be brought under that statute. Pursuant to section 516(a), an American manufacturer may file a petition with the Secretary either challenging the non-assessment of antidumping duties, if there has been no assessment, or challenging the amount of the special antidumping duties which have been assessed. If the Secretary agrees with the manufacturer’s assertion, he determines that duty should be assessed, if none has been assessed, and, if appropriate, determines the proper rate of duty to be assessed. The Secretary also informs the manufacturer of his determination. § 516(b). If the Secretary determines that the duty assessment was correct or that no antidumping duty should be assessed, he publishes that decision and so informs the manufacturer. The latter then has 30" } ]

[ { "docid": "12444556", "title": "", "text": "Act of 1930, as amended, has been denied, in whole or in part, by the appropriate customs officer, where the administrative decision, including the legality of all orders and findings entering into the same, involves: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery under any provisions of the customs laws; (5) the liquidation or reliquidation of an entry, or a modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate any entry under section 520(c) of the Tariff Act of 1930, as amended. See Brief at 18-21. Timken responds, correctly we think, that 28 U.S.C. § 1582(a) relates to protests filed by importers, not American manufacturers, pursuant to section 514, rather than section 516, of the Tariff Act of 1930. Brief at 10 n. 6; see Fritz v. United States, 535 F.2d 1192, at 1195 (9th Cir. 1976). The Government’s Reply Brief fails to answer Timken’s point; in fact, the Reply Brief makes no reference at all to 28 U.S.C. § 1582(a) (1970). Moreover, at oral argument the Government referred only to 28 U.S.C. § 1582(b) (1970) in contending that the Customs Court has exclusive jurisdiction over this action. . The Government contends that there is substantial case authority for the contention that the Customs Court has jurisdiction over the subject matter of this complaint. We have examined those cases carefully, and we conclude that they have no direct bearing on the question before us. The cases cited by the Government indicate that the federal district courts are without jurisdiction to adjudicate matters as to which there is exclusive jurisdiction in the Customs Court. See, e. g., Fritz v. United States, 535 F.2d 1192 (9th Cir. 1976); J. C. Penney Co. v. Department of the Treasury, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); North American Cement Corp. v. Anderson," }, { "docid": "12444558", "title": "", "text": "109 U.S.App.D.C. 162, 284 F.2d 591 (1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (D.C.Cir.), cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960); Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670 (D.C. Cir.), cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956). But the fact that federal courts will not interfere with cases reviewable in the Customs Court does not mean that the case sub judice is reviewable in that court, and our analysis of section 516 indicates otherwise. Nor do we think the Government’s position is supported by the cited cases indicating that the Customs Court has exclusive jurisdiction over certain controversies involving the Antidumping Act. See, e. g., North American Cement Corp. v. Anderson, supra; Horton v. Humphrey, 146 F.Supp. 819 (D.D.C.), aff'd, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). Surely the Government recognizes that the fact that the Customs Court has jurisdiction to entertain a wide variety of suits involving antidumping duties, especially those brought pursuant to section 516, does not mean that all cases involving the Antidumping Act fall within the statutory grant of jurisdiction to that court. More on point, in our view, are those cases indicating that the federal district courts can assert jurisdiction, under appropriate jurisdictional grants, over customs-related matters in which no adequate remedy exists in the Customs Court. See, e. g., J. C. Penney Co. v. Department of the Treasury, supra, 439 F.2d at 68; United States v. Hammond Lead Products, 440 F.2d 1024, 58 C.C.P.A. 129, cert. denied, 404 U.S. 1005, 92 S.Ct. 565, 30 L.Ed.2d 558 (1971); cf. Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892 (1918); Cottman Co. v. Dailey, 94 F.2d 85, 89 (4th Cir. 1938). Since Timken has no remedy pursuant to section 516 in the Customs Court, we decline to hold that the District Court lacked jurisdiction over this action. Timken asserts that the District Court had jurisdiction over this action pursuant to a number of statutory provisions, including 28 U.S.C. §§ 1331," }, { "docid": "860703", "title": "", "text": "was properly before the District Court because the 1890 Act limited the jurisdiction of the Customs Court to questions relating to the rates and amounts of duties payable on articles agreed to be imported, but did not extend to the Customs Court authority to determine the threshold issue of importation. In DeLima, the Supreme Court, following Fassett, ruled that an action challenging the customs taxation of sugar from Puerto Rico was properly within the jurisdiction of the District Court and not within the jurisdiction of the Customs Court, because the contested issue was whether Puerto Rico, a possession of the United States, was a foreign country within the meaning of the Act. Since the decisions in Fassett and DeLima, subsequent customs legislation has significantly modified the 1890 Customs Administrative Act, and in cases arising under the more recent customs laws, the courts have consistently rejected jurisdictional arguments similar to that advanced by the present plaintiffs. Argosy Ltd. v. Hennigan, 404 F.2d 14 (5th Cir.1968); J. C. Penney Co., Inc. v. United States Treasury Department, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); Kocher v. Fowler, 130 U.S.App.D.C. 80, 397 F.2d 641 (1967), cert. denied, 391 U.S. 920, 88 S.Ct. 1805, 20 L.Ed.2d 657 (1968); North American Cement Corp. v. Anderson, 109 U.S.App.D.C. 162, 284 F.2d 591 (1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611, cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960) ; Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670, cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956); Riccomini v. United States, 69 F.2d 480 (9th Cir. 1934); Cottman Co. v. Dailey, 94 F.2d 85 (4th Cir. 1938); Altieri v. United States, 299 F.Supp. 458 (D.P.R.1969); Horton v. Humphrey, 146 F.Supp. 819 (D.D.C.), aff’d without opinion, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). Particularly apposite to the present case is Argosy Ltd. v. Hennigan, supra, a suit to enjoin the seizure of a yacht on which duty had not been paid," }, { "docid": "18292464", "title": "", "text": "Court, there nevertheless exists a recognized judicial exception to this statutory rule when no adequate relief may be obtained in that court. We do not dispute the existence of such an exception. See, e. g., Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892 (1918).” J. C. Penney Co. v. United States Treasury Department, 439 F.2d at 68. Although recognizing the existence of the exception to the “generally exclusive jurisdiction” of the Customs Court, the court held that the exception was inapplicable. In effectuating the intent of Congress, and the “broad national policy” which prompted the grant of exclusive jurisdiction to the Customs Court, the court noted that the “proper administration of the customs laws requires a complete, integral, smooth-functioning system of customs law justice.” 439 F.2d at 66. Although the Customs Court lacked the equitable power to grant the relief plaintiff sought, the remedy that the Customs Court could grant was nevertheless deemed adequate. The court stated: “Thus the only remedy available to Penney [in the Customs Court] is the obtaining of refunds of special dumping duties which may have been improperly assessed and paid. Though it may be true that the ordering of a hearing would be a more desirable form of relief from Penney’s point of view than the obtaining of refunds, the mere fact that more desirable remedies are unavailable does not mean that existing remedies are inadequate. We conclude that there is, in fact, an adequate remedy available to Penney in the Customs Court.” 439 F.2d at 68. In Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892 (1918), cited by the court in the J. C. Penney Co. case, the issue was not whether the plaintiff could obtain an adequate remedy within the statutory jurisdiction of the Secretary of the Treasury and the Board of General Appraisers. Rather, the question presented was whether the Secretary of the Treasury and the board had exceeded their jurisdiction by applying criteria not enumerated in the statute. In that case, pursuant to a regulation of the Secretary of the Treasury, the board" }, { "docid": "18292452", "title": "", "text": "the purposes of trade act amendments was to provide American manufacturers with judicial review equal to that available to importers which entitled them to contest the actual assessment of countervailing or antidumping duties. See H.R.Rep.No.93-571, at 76; S.Rep.No.93-1298. This court and the Court of Customs and Patent Appeals have regularly exercised jurisdiction in actions brought by American importers to contest affirmative injury determinations by the ITC. See, e. g., Imbert Imports, Inc. v. United States, C.A.D. 1094, 475 F.2d 1189, 60 CCPA 123 (1973); City Lumber Co. v. United States, 457 F.2d 991, 59 CCPA 89, C.A.D. 1045 (1972); and Ellis K. Orlowitz Co. v. United States, 50 CCPA 36, C.A.D. 816 (1963). The intent to provide judicial review of these questions, “equally” to American manufacturers and importers, is in harmony with the well recognized national policy that this court was established by Congress to provide a complete system of justice in the administration of customs law. It is also generally acknowledged that “questions involving the validity of official action in the imposition and collection of duties are properly cognizable before [the Customs Court] to the exclusion of other courts.” David L. Moss Co. v. United States, 103 F.2d 395, 397, 26 CCPA 381, 383, C.A.D. 45 (1939). Many cases may be cited to show that the courts have judicially noticed the congressional intention that civil litigation pertaining to customs matters should be conducted exclusively in the Customs Court. For example, the United States Court of Appeals for the Ninth Circuit, referring to the exclusive jurisdiction of the Customs Court, recently stated: “Even when other, broadly-worded statutes seem to confer concurrent jurisdiction on the district courts, the exclusivity of Customs Court jurisdiction reflects the policy of paramount importance which overrides the literal effect of such statutes . . . .” Fritz v. United States, 535 F.2d 1192, 1195 (9th Cir. 1976). See also: David L. Moss Co. v. United States, supra; J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); PatchoguePlymouth Mills" }, { "docid": "18292433", "title": "", "text": "Consumers Union of United States, Inc. v. Committee for Implementation of Textile Agreements, 561 F.2d 872 (D.C. Cir. 1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); Fritz v. United States, 535 F.2d 1192 (9th Cir. 1976). Since the defendants in the district court maintained that the United States Customs Court had jurisdiction under the provisions of section 516, it moved to dismiss SCM’s action for lack of subject matter jurisdiction. The district court held that since SCM could bring its action pursuant to section 516, it was within the exclusive jurisdiction of the United States Customs Court. In its decision, the district court also stated that the amendments to section 516 “provided in the Trade Act of 1974 reinforce the conclusion that Congress did not mean to deprive the Customs Court of its exclusive jurisdiction over customs matters.” SCM Corporation, 404 F.Supp. at 130. Accordingly, the district court granted defendants’ motion and dismissed the action. Id. at 132. On appeal, the United States Court of Appeals for the District of Columbia Circuit expressed doubt on the jurisdictional question presented and stated: “SCM has raised what are far from frivolous doubts concerning its ability to obtain review in the Customs Court pursuant to section 516(c). On the other hand, [the defendants] have urged upon us what appear to be quite possible constructions of the applicable statutes and legislative history.” SCM Corporation v. United States International Trade Commission et al., 179 U.S.App.D.C. 110, 549 F.2d 812, 821 (1977). Hence, the court of appeals reversed the judgment dismissing SCM’s action for lack of subject matter jurisdiction, and remanded the case to the district court. The remand contained the instruction that the district court retain jurisdiction until SCM had brought an action in the United States Customs Court to enable the Customs Court to determine whether it had jurisdiction to review a negative injury determination of the ITC in an American manufacturer’s action brought under section 516. Subsequently, SCM commenced an action in this court pursuant to section 516, and made the present motion to determine the court’s subject" }, { "docid": "18292462", "title": "", "text": "the recognized judicial exception that if adequate relief cannot be obtained in this court, jurisdiction lies in the district courts. J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); United States v. Hammond Lead Products, Inc., 58 CCPA 129, C.A.D. 1017, 440 F.2d 1024 (1971); Timken Co. v. Simon, 176 U.S.App.D.C. 219, 539 F.2d 221 (1976). Citing the Timken case, SCM argues that if it proceeded under section 516, it could not obtain an adequate remedy. Since section 516(c) provides for the challenge to the nonassessment of dumping duties on only one entry, SCM claims that there is no assurance that by following section 516(c) it can obtain review of the ITC’s negative injury determination. It suggests that by providing review procedures in section 516(d), for the review of the Secretary’s LTFV determinations that are different from the provisions of section 516(c), Congress indicated that it would be too burdensome to follow section 516(c) procedures in challenging negative injury determinations. In the Timken Co. case, the court indicated that section 516(c)— “is designed to enable American manufacturers to challenge substantive decisions by the Secretary with respect to the need for or the amount of anti-dumping duties. The section is structured to enable the petitioning manufacturer to challenge one entry per port, and to use that entry as a vehicle to obtain Customs Court review of the merits of the Secretary’s determination.” (Emphasis added.) Timken Co., 539 F.2d at 225-26. The judicial exception to the exclusive jurisdiction of the Customs Court, which vests jurisdiction with the district courts when this court cannot grant an adequate remedy, finds expression in the J. C. Penney Co. case. In that case, an American importer sought declaratory and injunctive relief to prevent the Treasury Department from conducting an investigation under the Antidumping Act to determine whether there were LTFV sales of the importer’s products. The court observed that— “[i]t is further urged that even acknowledging that generally exclusive jurisdiction over constitutional issues is vested in the Customs" }, { "docid": "18292461", "title": "", "text": "they are clearly permitted to do under either section 514 or 516, depending on whether it is a protest by an importer or by an American manufacturer.” 440 F.2d at 1035, 58 CCPA at 144. This fortifies the concept that what is involved in antidumping and countervailing cases, whether the complaint is that of an importer or an American manufacturer, is the classification and/or the rate of duty of imported merchandise. There is no doubt that it was the intent of Congress to provide judicial review to American manufacturers under section 516. The interpretation that judicial review of negative injury determinations by the ITC is available in the United States Customs Court under section 516 fulfills the intent of Congress, and effectuates the national policy of fostering expertise and uniformity in the interpretation and application of the customs laws. SCM nonetheless contends that even though the policy of uniformity in the interpretation and application of the customs laws requires exclusive jurisdiction to be vested in the United States Customs Court, this action nevertheless comes within the recognized judicial exception that if adequate relief cannot be obtained in this court, jurisdiction lies in the district courts. J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); United States v. Hammond Lead Products, Inc., 58 CCPA 129, C.A.D. 1017, 440 F.2d 1024 (1971); Timken Co. v. Simon, 176 U.S.App.D.C. 219, 539 F.2d 221 (1976). Citing the Timken case, SCM argues that if it proceeded under section 516, it could not obtain an adequate remedy. Since section 516(c) provides for the challenge to the nonassessment of dumping duties on only one entry, SCM claims that there is no assurance that by following section 516(c) it can obtain review of the ITC’s negative injury determination. It suggests that by providing review procedures in section 516(d), for the review of the Secretary’s LTFV determinations that are different from the provisions of section 516(c), Congress indicated that it would be too burdensome to follow section 516(c) procedures in challenging" }, { "docid": "18292463", "title": "", "text": "negative injury determinations. In the Timken Co. case, the court indicated that section 516(c)— “is designed to enable American manufacturers to challenge substantive decisions by the Secretary with respect to the need for or the amount of anti-dumping duties. The section is structured to enable the petitioning manufacturer to challenge one entry per port, and to use that entry as a vehicle to obtain Customs Court review of the merits of the Secretary’s determination.” (Emphasis added.) Timken Co., 539 F.2d at 225-26. The judicial exception to the exclusive jurisdiction of the Customs Court, which vests jurisdiction with the district courts when this court cannot grant an adequate remedy, finds expression in the J. C. Penney Co. case. In that case, an American importer sought declaratory and injunctive relief to prevent the Treasury Department from conducting an investigation under the Antidumping Act to determine whether there were LTFV sales of the importer’s products. The court observed that— “[i]t is further urged that even acknowledging that generally exclusive jurisdiction over constitutional issues is vested in the Customs Court, there nevertheless exists a recognized judicial exception to this statutory rule when no adequate relief may be obtained in that court. We do not dispute the existence of such an exception. See, e. g., Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892 (1918).” J. C. Penney Co. v. United States Treasury Department, 439 F.2d at 68. Although recognizing the existence of the exception to the “generally exclusive jurisdiction” of the Customs Court, the court held that the exception was inapplicable. In effectuating the intent of Congress, and the “broad national policy” which prompted the grant of exclusive jurisdiction to the Customs Court, the court noted that the “proper administration of the customs laws requires a complete, integral, smooth-functioning system of customs law justice.” 439 F.2d at 66. Although the Customs Court lacked the equitable power to grant the relief plaintiff sought, the remedy that the Customs Court could grant was nevertheless deemed adequate. The court stated: “Thus the only remedy available to Penney [in the Customs Court] is the obtaining" }, { "docid": "14609244", "title": "", "text": "dichotomy of federal jurisdiction heretofore exercised by the Customs Court and the district courts. This is not to say that this division of jurisdiction is always preferable, but that as a matter of public policy and effective judicial administration further division is uncalled for and would be contrary to the statutory scheme. Moreover, in my judgment, this case does not come within the ambit of the judicially created exception to the exclusive jurisdiction of the United States Customs Court that vests jurisdiction in the federal district courts when an adequate remedy is unavailable in the Customs Court. See, e. g., Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 399 (2d Cir. 1977); J. C. Penney Co. v. United States Treasury Department, supra, 439 F.2d at 68. It is evident that Congress intended to provide a complete, integral, and uniform system for the adjudication of matters arising under the customs laws. Plaintiff contends, however, that inasmuch as the remedy provided for in the Customs Court is prospective only, plaintiff cannot obtain complete relief in that court and therefore this action must be recognized as coming within the exception thereby requiring this Court to exercise its residual jurisdiction over this customs matter. Initially, let me state that I find plaintiff’s assertion that the Customs Court, which is now an article III court, is without any equitable jurisdiction hard to accept. See United States v. Boe, 543 F.2d 151, 157 n.9 (Cust. & Pat.App. 1976). Compare Matsushita Electric Industrial Co. v. United States Treasury Department, 60 C.C.P.A. 85, 485 F.2d 1402 (Cust. & Pat.App.) (per curiam), cert, denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973), with Consumers Union of United States, Inc. v. Committee For the Implementation Of Textile Agreements, 182 U.S.App.D.C. 423, 561 F.2d 872 (1977) (per curiam), cert, denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed. 531 (1978). Yet, it is true that the Customs Court cannot act upon Flintkote’s requested relief until jurisdiction in that court is perfected. See Dexter v. United States, 424 F.Supp. 1069 (Cust. Ct. 1977). But this fact alone does not work" }, { "docid": "14609245", "title": "", "text": "and therefore this action must be recognized as coming within the exception thereby requiring this Court to exercise its residual jurisdiction over this customs matter. Initially, let me state that I find plaintiff’s assertion that the Customs Court, which is now an article III court, is without any equitable jurisdiction hard to accept. See United States v. Boe, 543 F.2d 151, 157 n.9 (Cust. & Pat.App. 1976). Compare Matsushita Electric Industrial Co. v. United States Treasury Department, 60 C.C.P.A. 85, 485 F.2d 1402 (Cust. & Pat.App.) (per curiam), cert, denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973), with Consumers Union of United States, Inc. v. Committee For the Implementation Of Textile Agreements, 182 U.S.App.D.C. 423, 561 F.2d 872 (1977) (per curiam), cert, denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed. 531 (1978). Yet, it is true that the Customs Court cannot act upon Flintkote’s requested relief until jurisdiction in that court is perfected. See Dexter v. United States, 424 F.Supp. 1069 (Cust. Ct. 1977). But this fact alone does not work to vest jurisdiction in this Court. See J. C. Penney Co. v. United States Treasury Department, supra, 439 F.2d at 68. Be that as it may, I believe that this exception includes only those situations where it can be said that the remedy approaches total nonexistence and not a situation where an assertion is made that complete relief can only be awarded in a federal district court. In those extraordinary cases where it was held that this exception was satisfied the determinative factor was the absence of any available relief in the Customs Court. See SCM Corp. v. United States, supra, 450 F.Supp. at 1191—93. Thus, in Sneaker Circus, Inc. v. Carter, supra, 566 F.2d 396 (2d Cir. 1977), jurisdiction could be obtained only if persons who were not parties to the action violated a trade agreement entered into between the United States and two foreign countries. The Court of Appeals, Second Circuit, held that in such a situation the claim presented would never ripen sufficiently to give rise to Customs Court jurisdiction. Id. at" }, { "docid": "18292453", "title": "", "text": "of duties are properly cognizable before [the Customs Court] to the exclusion of other courts.” David L. Moss Co. v. United States, 103 F.2d 395, 397, 26 CCPA 381, 383, C.A.D. 45 (1939). Many cases may be cited to show that the courts have judicially noticed the congressional intention that civil litigation pertaining to customs matters should be conducted exclusively in the Customs Court. For example, the United States Court of Appeals for the Ninth Circuit, referring to the exclusive jurisdiction of the Customs Court, recently stated: “Even when other, broadly-worded statutes seem to confer concurrent jurisdiction on the district courts, the exclusivity of Customs Court jurisdiction reflects the policy of paramount importance which overrides the literal effect of such statutes . . . .” Fritz v. United States, 535 F.2d 1192, 1195 (9th Cir. 1976). See also: David L. Moss Co. v. United States, supra; J. C. Penney Co. v. United States Treasury Department, 439 F.2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); PatchoguePlymouth Mills Corp. v. Durning, 101 F.2d 41 (2d Cir. 1939); Cottman v. Dailey, 94 F.2d 85 (4th Cir. 1938). In the North American Cement case, 109 U.S.App.D.C. 162, 284 F.2d 591 (1960), the United States Court of Appeals for the District of Columbia Circuit also acknowledged the exclusive jurisdiction of the Customs Court. In affirming the dismissal by the district court of the American manufacturer’s complaint for lack of subject matter jurisdiction, the circuit court reviewed several of its previous holdings on this question: “In Morgantown Glassware Guild v. Humphrey, we read 28 U.S.C. § 1583 [now 1582] as providing without limitation that ‘ “The Customs Court shall have exclusive jurisdiction to review on protest the * * * rate and amount of duties chargeable and as to all exactions of whatever character within the jurisdiction of the Secretary of the Treasury * * *.’”98 U.S.App.D.C. 375, 376, 236 F.2d 670, 671 [1956], In Boston Wool Trade Ass’n v. Snyder, we said: ‘It is clear that the controversy concerns the duty to be imposed upon certain" }, { "docid": "12444557", "title": "", "text": "1195 (9th Cir. 1976). The Government’s Reply Brief fails to answer Timken’s point; in fact, the Reply Brief makes no reference at all to 28 U.S.C. § 1582(a) (1970). Moreover, at oral argument the Government referred only to 28 U.S.C. § 1582(b) (1970) in contending that the Customs Court has exclusive jurisdiction over this action. . The Government contends that there is substantial case authority for the contention that the Customs Court has jurisdiction over the subject matter of this complaint. We have examined those cases carefully, and we conclude that they have no direct bearing on the question before us. The cases cited by the Government indicate that the federal district courts are without jurisdiction to adjudicate matters as to which there is exclusive jurisdiction in the Customs Court. See, e. g., Fritz v. United States, 535 F.2d 1192 (9th Cir. 1976); J. C. Penney Co. v. Department of the Treasury, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); North American Cement Corp. v. Anderson, 109 U.S.App.D.C. 162, 284 F.2d 591 (1960); Eastern States Petroleum Corp. v. Rogers, 108 U.S.App.D.C. 63, 280 F.2d 611 (D.C.Cir.), cert. denied, 364 U.S. 891, 81 S.Ct. 222, 5 L.Ed.2d 187 (1960); Morgantown Glassware Guild v. Humphrey, 98 U.S.App.D.C. 375, 236 F.2d 670 (D.C. Cir.), cert. denied, 352 U.S. 896, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956). But the fact that federal courts will not interfere with cases reviewable in the Customs Court does not mean that the case sub judice is reviewable in that court, and our analysis of section 516 indicates otherwise. Nor do we think the Government’s position is supported by the cited cases indicating that the Customs Court has exclusive jurisdiction over certain controversies involving the Antidumping Act. See, e. g., North American Cement Corp. v. Anderson, supra; Horton v. Humphrey, 146 F.Supp. 819 (D.D.C.), aff'd, 352 U.S. 921, 77 S.Ct. 224, 1 L.Ed.2d 157 (1956). Surely the Government recognizes that the fact that the Customs Court has jurisdiction to entertain a wide variety of suits involving antidumping duties, especially those" }, { "docid": "18292432", "title": "", "text": "United States District Court for the District of Columbia seeking to set aside the negative injury determination of the ITC, and requested preliminary injunctive relief. SCM Corporation v. United States International Trade Commission et al., 404 F.Supp. 124 (D.D.C. 1975). The jurisdictional basis for the action was 28 U.S.C. § 1340 (1970), which provides that “[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court.” The jurisdiction of the United States Customs Court over actions by American manufacturers is found in 28 U.S.C. § 1582(b) (1970), which provides that “[t]he Customs Court shall have exclusive jurisdiction of civil actions brought by American manufacturers, producers, or wholesalers pursuant to section 516 of the Tariff Act of 1930, as amended.” These statutes make it clear that if a civil action is within the exclusive jurisdiction of the United States Customs Court, it cannot be brought in the district courts. E. g., Consumers Union of United States, Inc. v. Committee for Implementation of Textile Agreements, 561 F.2d 872 (D.C. Cir. 1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); Fritz v. United States, 535 F.2d 1192 (9th Cir. 1976). Since the defendants in the district court maintained that the United States Customs Court had jurisdiction under the provisions of section 516, it moved to dismiss SCM’s action for lack of subject matter jurisdiction. The district court held that since SCM could bring its action pursuant to section 516, it was within the exclusive jurisdiction of the United States Customs Court. In its decision, the district court also stated that the amendments to section 516 “provided in the Trade Act of 1974 reinforce the conclusion that Congress did not mean to deprive the Customs Court of its exclusive jurisdiction over customs matters.” SCM Corporation, 404 F.Supp. at 130. Accordingly, the district court granted defendants’ motion and dismissed the action. Id. at 132. On appeal, the United States Court of Appeals for the District of" }, { "docid": "22422275", "title": "", "text": "Prior to promulgation of the present version of § 1581 in the Customs Court Act of 1980, Pub.L. No. 96-417, 94 Stat. 1728, the jurisdiction of the Customs Court (now the CIT) was limited to the review of the Customs Service’s denial of protests concerning the exclusion, classification, or valuation of imported merchandise. The Customs Court’s jurisdiction was “exclusive”; in fact, the statute providing for federal question jurisdiction over importation matters in the district courts specifically denied the district courts concurrent jurisdiction with the Customs Court over international trade matters. This seemingly simple division of jurisdiction soon created a problem: since the Customs Court had jurisdiction only after Customs’ denial of a protest, and since the federal question statute denied the district courts jurisdiction only over those matters in which the Customs Service had jurisdiction, could a prospective importer challenge in district court a Customs Service regulation prior to actual importation (and, therefore, prior to a protest)? The cases on this issue in the courts of appeals were not uniform. In Sneaker Circus, Inc. v. Carter, 566 F.2d 396 (2d Cir.1977), the Second Circuit ruled that the district court had jurisdiction over a case in which a prospective importer challenged Customs Service regulations promulgated pursuant to international agreements. The court reasoned that these agreements would be enforced abroad, restricting the opportunity for an importer to attempt to bring in merchandise beyond the agreements’ terms. Since in that situation the Customs Service would never have the opportunity to consider a protest, the Customs Court could never obtain jurisdiction, and the district courts had jurisdiction under the federal question statute. 566 F.2d at 399. The District of Columbia Circuit reached an opposite result in Consumers Union of the United States, Inc. v. Committee for the Implementation of Textile Agreements, 561 F.2d 872 (1977) (per curiam), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978). Consumers Union challenged CITA’s import restrictions prior to any attempt to import merchandise beyond CITA’s ceilings. That court of appeals ruled that the district court lacked jurisdiction: “Here ... if anyone wishes to challenge the" }, { "docid": "5429116", "title": "", "text": "Our decision is guided by the intent of Congress. In enacting 28 U.S.C. § 1582, Congress intended that matters involving customs laws should be heard by one tribunal so that uniformity of decision would result. J. C. Penney Co. v. U. S. Treasury Department, 439 F.2d 63, 66 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); see also Fritz v. United States, 535 F.2d 1192, 1194 (9th Cir. 1976); Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 399 (2d Cir. 1977). If the district court should have jurisdiction over this type of action, inconsistent district and circuit court opinions on both jurisdictional and substantive revenue and protection claims would result. Moreover the Customs Court would be denied jurisdiction in the greatest area of its expertise. We do not believe that Congress intended these results. II. Adequate Remedy A narrow exception to exclusive Customs Court jurisdiction exists where plaintiffs have no “adequate remedy” in Customs Court. See, e. g., Sneaker Circus, Inc. v. Carter, 566 F.2d at 399. Where no adequate remedy exists, jurisdiction lies in the district court to consider the challenge. 566 F.2d at 399. Plaintiffs assert that they come within the “remedy” exception to Customs Court jurisdiction because, while it is theoretically possible for them to pursue an administrative remedy by importing more than their duty-free quota allocation, paying the duties assessed, and then suing for a refund under 19 U.S.C. § 1514(a), it is practically impossible for them to do so. They contend that if the 1979 Rules are allowed to go into effect, they will be forced out of business and thus will be unable to pursue the administrative remedy provided in § 1514(a). In arguing that the “adequate remedy” exception applies, plaintiffs strongly rely on Sneaker Circus, Inc. v. Carter, supra, and Davis Walker Corp. v. Blumenthal, 460 F.Supp. 283 (D.D.C.1978). Both cases are distinguishable. In Sneaker Circus, retailers, wholesalers, and importers of footwear sought injunctive and declaratory relief to invalidate certain U.S. trade agreements with the Republic of Korea and the Republic of China, which were negotiated pursuant" }, { "docid": "19095053", "title": "", "text": "is also generally acknowledged that “questions involving the validity of official action in the imposition and collection of duties are properly cognizable before [the Customs Court] to the exclusion of other courts.” David L. Moss Co. v. United States, 26 CCPA 381, 383, C.A.D. 45, 103 F. 2d 395 (1939). Many cases may be cited to show that the courts have judicially noticed the congressional intention that civil litigation pertaining to customs matters should be conducted exclusively in the Customs Court. For example, the United States Court of Appeals for the Ninth Circuit, referring to the exclusive jurisdiction of the Customs Court, recently stated: “Even when other, broadly-worded statutes seem to confer concurrent jurisdiction on the district courts, the exclusivity of Customs Court jurisdiction reflects a policy of paramount importance which overrides the literal effect of such statutes . . ..” Fritz v. United States, 535 F. 2d 1192, 1195 (9th Cir. 1976). See also: David L. Moss Co. v. United States, supra; J. C. Penney Co. v. United States Treasury Department, 439 F. 2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Patchogue-Plymouth Mills Corp. v. Durning, 101 F. 2d 41 (2d Cir. 1939); Cottman v. Dailey, 94 F. 2d 85 (4th Cir. 1938). In the North American Cement case, 284 F. 2d 591 (1960), the United States Court of Appeals for the District of Columbia Circuit also acknowledged the exclusive jurisdiction of the Customs Court. In affirming the dismissal by the district court of the American manufacturer’s complaint for lack of subject matter jurisdiction, the circuit court reviewed several of its previous holdings on this question: “In Morgantown Glassware Guild v. Humphrey, we read 28 U.S.C. § 1583 [now 1582] as providing without limitation that ‘ “The Customs Court shall have exclusive jurisdiction to review on protest the * * * rate and amount of duties chargeable and as to all exactions of whatever character within the jurisdiction of the Secretary of the Treasury * * ’ 98 U.S. App. D.C. 375, 376, 236 F. 2d 670, 671 [1956]. In Boston Wool Trade Ass’n v. Snyder," }, { "docid": "15784661", "title": "", "text": "which require the interpretation of the fifth amendment to the United States Constitution and the Trade Act of 1974; that it is barred, by the terms of the agreements, from litigating these issues in the U.S. Customs Court; and that consequently the District Court has jurisdiction of the matter, pursuant to 28 U.S.C. §§ 1331,1337 and the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Appellees, U.S. Government officials, argue to the contrary that 28 U.S.C. § 1582(a), as amended, assigns the Customs Court exclusive subject matter jurisdiction over this case. As we noted in our opinion in J. C. Penney Co. v. U.S. Treasury Department, 439 F.2d 63 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971), it is the general rule that disputes which concern the customs laws of the United States, and which arise under the Tariff Act of 1930, as amended, may be adjudicated only in the Customs Court pursuant to the grant of exclusive jurisdiction in 28 U.S.C. § 1582(a). This is the case even when those disputes are largely constitutional in nature, and even when they have not yet “ripened” sufficiently to permit immediate adjudication as justiciable “cases or controversies.” This rule is supported both by sound considerations of policy and by consistent historical precedent. In Patchogue-Plymouth Mills Corp. v. Durning, 101 F.2d 41 (2d Cir. 1939), and in David L. Moss Co. v. United States, 103 F.2d 395 (Cust. & Pat.App.1939), the courts indicated that jurisdictional exclusivity was a necessary condition of the uniform and consistent application of the customs laws. There is, however, an exceptional class of cases which, while arising under the Tariff Act of 1930, is for practical or jurisprudential reasons, barred from the Customs Court by statute. In these cases, and in these cases alone, jurisdiction is vested in the District Courts by virtue of 28 U.S.C. §§ 1331 and 1337. While this exceptional category must be narrowly construed so as not to defeat the policy justifications of the general rule, it is, nevertheless, well-grounded in federal practice and precedent. See Timken Co." }, { "docid": "5429115", "title": "", "text": "to traditional customs purposes, i. e., protection of domestic industry from foreign competition and the raising of revenues, even though the rules also have the concurrent purpose of promoting insular economic development. Both the legislative history of Public Law 89-805 and the preamble to the 1979 Allocation Rules reflect the substantial purpose of protecting domestic industry by discouraging “funnel-through” operations. See S.Rep. No. 1679, 89th Cong., 2d Sess., reprinted in [1966] U.S.Code Cong. & Admin.News, pp. 4389, 4395-96; 43 Fed.Reg. 60313. And, viewed as a whole, the statute and rules merely provide for a partial exemption from duties normally imposed on foreign goods. See General Headnote 3(a) of the Tariff Schedules of the United States, 19 U.S.C. § 1202. Thus it is apparent that the customs purpose is not peripheral and that plaintiffs’ challenge to the 1979 Allocation Rules is. one directed at “the classification and rate and amount of duties chargeable” under the Tariff Act of 1930, as amended. Therefore, jurisdiction is exclusively vested in the Customs Court pursuant to 28 U.S.C. § 1582(a). Our decision is guided by the intent of Congress. In enacting 28 U.S.C. § 1582, Congress intended that matters involving customs laws should be heard by one tribunal so that uniformity of decision would result. J. C. Penney Co. v. U. S. Treasury Department, 439 F.2d 63, 66 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); see also Fritz v. United States, 535 F.2d 1192, 1194 (9th Cir. 1976); Sneaker Circus, Inc. v. Carter, 566 F.2d 396, 399 (2d Cir. 1977). If the district court should have jurisdiction over this type of action, inconsistent district and circuit court opinions on both jurisdictional and substantive revenue and protection claims would result. Moreover the Customs Court would be denied jurisdiction in the greatest area of its expertise. We do not believe that Congress intended these results. II. Adequate Remedy A narrow exception to exclusive Customs Court jurisdiction exists where plaintiffs have no “adequate remedy” in Customs Court. See, e. g., Sneaker Circus, Inc. v. Carter, 566 F.2d at 399. Where no" }, { "docid": "22422276", "title": "", "text": "Carter, 566 F.2d 396 (2d Cir.1977), the Second Circuit ruled that the district court had jurisdiction over a case in which a prospective importer challenged Customs Service regulations promulgated pursuant to international agreements. The court reasoned that these agreements would be enforced abroad, restricting the opportunity for an importer to attempt to bring in merchandise beyond the agreements’ terms. Since in that situation the Customs Service would never have the opportunity to consider a protest, the Customs Court could never obtain jurisdiction, and the district courts had jurisdiction under the federal question statute. 566 F.2d at 399. The District of Columbia Circuit reached an opposite result in Consumers Union of the United States, Inc. v. Committee for the Implementation of Textile Agreements, 561 F.2d 872 (1977) (per curiam), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978). Consumers Union challenged CITA’s import restrictions prior to any attempt to import merchandise beyond CITA’s ceilings. That court of appeals ruled that the district court lacked jurisdiction: “Here ... if anyone wishes to challenge the Committee’s actions, he can do so as other challenges of that nature are made, i.e., as an importer ... bringing textiles into the United States.” 561 F.2d at 874. Contrary to the Second Circuit’s opinion, the court ruled that judicial review of CITA’s actions could be had only in the Customs Court following the denial of a protest by the Customs Service. In the Customs Court Act, Congress specifically sought to resolve the confusion between the district courts’ and the then Customs Court’s jurisdictions. S.Rep. No. 466, 96th Cong., 1st Sess. 4-5; H.Rep. No. 1235, 96th Cong., 2d Sess. 29-30 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 3729, 3741. The Senate Report clearly states the intended effect of the new statute, and its reasons: Because the statutes defining the jurisdiction of the Customs Court are so intricate and because international trade problems have become so complex, it has become increasingly more difficult to determine, in advance, whether or not a particular case falls within the exclusive jurisdiction of the Customs Court and is therefore" } ]

[ { "docid": "22759684", "title": "", "text": "U.S.C. § 1229(a)(1), citing Matter of G-Y-R, 23 I. & N. Dec. 181 (BIA 2001). Kohli asserts that 8 C.F.R. § 299.1 directs that the NTA must use Form 1-862, and that the form “requires the signature and title of the issuing immigration officer.” Kohli claims that the party asserting jurisdiction has the burden of proving all jurisdictional facts. She then addresses the four reasons offered by the IJ for denying her motion to terminate proceedings. In response to the IJ’s observation that 8 U.S.C. § 1229(a)(1)(B) does not require that the NTA indicate the title of the issuing officer, Kohli asserts: The defect upon which the motion is based is not the failure to indicate the title of the issuing officer, per se. But rather, since the signature on the NTA is illegible and the name and title of the official are not indicated, the IJ is in no position to determine whether he in fact has jurisdiction. Second, Kohli denies that she waived the issue, arguing that á challenge to jurisdiction cannot be waived, citing Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000), and Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir.2003). Third, Kohli’s answer to the IJ’s finding of no prejudice is that (a) prejudice is not required where there is a lack of jurisdiction, and (b) she did establish prejudice because the outcome would have been different, e.g., the proceedings would have been terminated. Finally, Kohli argues that the IJ’s invocation of the presumption of regularity improperly shifts the burden of establishing jurisdiction from the government to her. B. Applicable legal standards The sufficiency of the NTA is a question of law, which is reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003) (holding that legal determinations by the BIA and due process claims are reviewed de novo). The process of removal is commenced by giving written notice in person to the alien informing him or her of: (A) The nature of the proceedings against the alien. (B) The legal authority under which the proceedings are conducted. (C) The acts or conduct" } ]

[ { "docid": "22683747", "title": "", "text": "satisfy the heavy evidentiary burden relevant to reopening. See Matter of Coelho, supra. (emphasis added). The Board then went on to deny relief on a separate ground, namely the fugitive disentitlement doctrine: In addition, we find that denial of the motion to reopen is appropriate as a matter of discretion.... the respondent failed to appear for removal from the United States when she was ordered to report on July 16, 2003, which is substantiated by a notice in the file. We note that the respondent submitted the present motion on July 15, 2003, when her scheduled removal was imminent. Her failure to report in accordance with the removal order operated as a serious adverse discretionary factor warranting the denial of this motion. See Matter of Barocio, 19 I & N Dec. 255 (BIA 1985). ANALYSIS Bhasin challenges both the denial of the motion to reopen on the merits and the discretionary denial on the basis of the fugitive disentitlement doctrine. We review the Board’s denial of a motion to reopen for abuse of discretion, regardless of the underlying relief requested. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). We review the Board’s determination of purely legal questions de novo. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). Factual findings are reviewed for substantial evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996). The Board has the discretion to deny a motion to reopen “even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). However, we will reverse a denial of a motion to reopen if the denial was “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) cert. denied, 539 U.S. 941, 123 S.Ct. 2605, 156 L.Ed.2d 626 (2003) (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)). In addition, the Board must show proper consideration of all factors, both favorable and unfavorable, in determining whether to grant a motion to reopen, Virk v. INS, 295 F.3d 1055, 1060 (9th Cir.2002), and must articulate its reasons for" }, { "docid": "22669183", "title": "", "text": "the IJ arguing that his client never intended to give up his right to present his asylum claim, but only withdrew his application because he believed the IJ did not intend to grant asylum. The IJ found Cano had failed to demonstrate prima facie eligibility for the relief sought and denied his motion to reopen. On December 22, 1997, Cano filed before the IJ a motion to reconsider denial of his motion to reopen. Cano’s attorney reported that Cano “withdrew the asylum claim only because he understood that the [IJ] would not grant it,” and was relying on the IJ as “a person of authority ... to help him assess [his] asylum claim.” Cano alleged the IJ denied him due process, contested that he was not allowed to “explain or rebut” material contained in the Guatemala report, and asserted that he could have demonstrated a well-founded fear of persecution. The IJ denied Cano’s motion to reconsider. Cano appealed this decision to the BIA and filed also a motion to reopen with the BIA to seek relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim" }, { "docid": "22696617", "title": "", "text": "Gonzales, 439 F.3d 582, 588-90 (9th Cir.2006) (exercising jurisdiction and finding that the petitioner was entitled to equitable tolling of the deadlines and numerical restrictions for the motion to reopen because he acted with appropriate diligence in discovering the deficient representation); Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003) (exercising jurisdiction over a claim of entitlement to equitable tolling and the particular issue of due diligence). We therefore conclude that we have jurisdiction over Singh’s habeas petition because it was a challenge to an order of removal “pending” in the district court at the time of enactment of the REAL ID Act and therefore falls within the scope of RIDA’s transfer provision. III. STANDARD OF REVIEW We review the BIA’s ruling on a motion to reopen for abuse of discretion. Nath v. Gonzales, 467 F.3d 1185, 1187 (9th Cir.2006). We review purely legal questions, such as due process claims, de novo. Itiurribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). IV. DISCUSSION Singh contends that the BIA erred in denying his motion to reopen for untimeliness. In general, a motion to reopen must be filed “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). However, equitable tolling of the time limit for a motion to reopen is available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud, or error.” Iturribarria, 321 F.3d at 897. In our en banc decision in Socop-Gonzalez v. INS, we held that equitable tolling applies where “despite all due diligence, the party invoking equitable tolling is unable to obtain vital information bearing on the existence of the claim.” 272 F.3d 1176, 1193 (9th Cir.2001); see also Albillo-DeLeon v. Gonzales, 410 F.3d 1090, 1099-1100 (9th Cir.2005). “The party’s ignorance of the necessary information must have been caused by circumstances beyond the party’s control.” Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir.2007) (quotation marks and citation omitted). In this case, the final order of" }, { "docid": "22386700", "title": "", "text": "learned that his appeal had been summarily dismissed. On June 18, 2002, represented by new counsel, Singh filed a thirteen-page “Motion to Reopen and to Stay Deportation,” asserting that his former counsel had been ineffective. In the motion, Singh outlined the steps he had taken to comply with Matter of Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1988). At the end of the motion, Singh “respectfully move[d] that his appeal ... be reopened and he be allowed to file a brief as per the original Notice of Appeal.” In a one-person order, the BIA denied Singh’s motion to reopen, recharacterizing it as a motion to reconsider. It denied the motion on two grounds. First, it refused to grant equitable tolling and denied the motion as untimely. Second, it held that, in any event, Singh had failed to show prejudice resulting from the ineffective assistance of his former counsel. We have jurisdiction to review the BIA’s denial of a motion to reopen under 8 U.S.C. § 1252(b). See Reyes v. Ashcroft, 358 F.3d 592, 594 (9th Cir.2004). “This court reviews BIA denials of motions to reopen for abuse of discretion, but reviews purely legal questions, such as due process claims, de novo.” Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003) (internal citations omitted). For the reasons that follow, we hold that the BIA abused its discretion in denying Singh’s motion to reopen. II. Discussion A. Recharacterization of Singh’s Motion We have recently held that “[wjhere the facts surrounding allegedly ineffective representation by counsel were unavailable to the petitioner at an earlier stage of the administrative process, motions before the BIA based on claims of ineffective assistance of counsel are properly deemed motions to reopen.” Iturribarria, 321 F.3d at 891. Singh’s motion to reopen fits squarely within our holding in Iturribarria. In his motion, Singh represented that he had not learned that his appeal had been summarily dismissed by the BIA until he called the automated telephone system in April 2002. Only after that telephone call did Singh learn that Sekhon, his former counsel, had failed to" }, { "docid": "22892722", "title": "", "text": "Apt. # 101, Los Angeles, CA 90057, dated August 17, 2005. We note from the record of proceeding, that there is no evidence to corroborate this claim. Moreover, our prior decision was not returned to the Board undeliverable. As there is no error attributable to the Board in the service of its decision, we decline to accept the motion sua sponte. 8 C.F.R. § 1003.2(a). Accordingly, the motion is denied. II. ANALYSIS In the instant petition, Hernandez appeals only the BIA’s order denying her motion to reopen and reissue. Our review is, therefore, limited to consideration of that order, rather than the merits of Hernandez’s underlying claim for cancellation of removal. See INA § 242(b)(4), 8 U.S.C. § 1252(b)(4). We review questions of law, including constitutional claims, de novo. Masnauskas v. Gonzales, 432 F.3d 1067, 1069 (9th Cir.2005). We review the BIA’s denial of motions to reopen for abuse of discretion. Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). The BIA abuses its discretion when it acts “arbitrarily], irrationally], or contrary to law.” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000). An error of law is an abuse of discretion. See Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir.2002). Here, the BIA’s decision is “contrary to law,” because it conflicts with our prior holding in Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). In Singh we held that when a petitioner offers evidence, in the form of an affidavit, tending to show that the BIA failed to comply with its notice obligations, the BIA must consider the “weight and consequences” of that affidavit before denying the petitioner’s motion to reopen and must “specifically address what procedures or processes exist to assure that petitioners are notified of the BIA’s decisions.” Id. at 1173. We held that the BIA decision denying Singh’s motion to reopen and reinstate/reissue was insufficient because it failed to provide any explanation of how the BIA reached its conclusion that its prior decision had been properly mailed to Singh, and because it failed to consider properly the affidavits submitted by Singh and his attorney stating" }, { "docid": "22774437", "title": "", "text": "would take their children with them if deported. Petitioners accompanied their motion to reopen with new evidence of Lopez’s continuous presence, with declarations stating that they would leave their children behind, and with affidavits from Maravilla’s parents on the hardship they would suffer if petitioners were deported. The BIA denied the motion, concluding that petitioners failed to show that their case outcome “would have been different but for the alleged ineffectiveness” of counsel. The BIA held the new evidence of continuous presence and of the grandmother’s hardship barred, as that evidence was available and “could have, and should have” been presented previously. Further, the BIA deemed the evidence of the hardship of the children and of Maravilla’s father to support a motion to reconsider, rather than a motion to reopen. As such, the motion was untimely, and in any case it failed to show exceptional and extremely unusual hardship. We review a BIA ruling on a motion to reopen for an abuse of discretion, and will reverse the denial of a motion to reopen only if the Board acted “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (quotation marks and citation omitted). BIA factual findings are reviewed for substantial evidence. Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.2000). Questions of law are reviewed de novo. Id. II. ANALYSIS Ineffective assistance of counsel in a removal proceeding amounts to a violation of due process under the Fifth Amendment if “the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985). Such a claim requires two showings. Petitioners first must demonstrate “that counsel [failed to] perform with sufficient competence.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir.2004). Second, they must show that they were prejudiced by their counsel’s performance. See Iturribarria v. INS, 321 F.3d 889, 899-900 (9th Cir.2003). So far afield of the proper two-pronged analysis is the Board’s opinion, however, that it is unclear whether it actually treated petitioners’ motion as an ineffective assistance of counsel claim." }, { "docid": "22669184", "title": "", "text": "relief under the Conven tion Against Torture. The BIA affirmed the IJ’s decision, dismissed Cano’s appeal, and denied his motion to reopen. This petition followed. STANDARD OF REVIEW We review the BIA’s denial of motions to reopen or to reconsider for abuse of discretion, “although[de novo] review applies to the BIA’s determination of purely legal questions.” Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002); see also Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (motion to reopen); Padilla-Agustin v. INS, 21 F.3d 970, 973 (9th Cir.1994), overruled on other grounds by Stone v. INS, 514 U.S. 386, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (motion to reconsider). “We review de novo claims of due process violations in deportation proceedings.” Perez-Lastor v. INS, 208 F.3d 773, 777 (9th Cir.2000) (citation omitted). Review is limited to the BIA’s decision because the BIA reviewed the IJ’s decision de novo. Agyeman v. INS, 296 F.3d 871, 876 (9th Cir.2002). DISCUSSION I Due Process Cano argues that the BIA abused its discretion by failing to address his claim that the IJ denied him a meaningful opportunity to present his ease. The BIA concluded the IJ did not err in denying Cano’s motion to reconsider because Cano chose to proceed without an attorney, was presented with options regarding whether to present his asylum application, and voluntarily elected to withdraw his application. We will not disturb the BIA’s decision unless it acted “arbitrarily, irrationally, or contrary to law.” Singh, 213 F.3d at 1052. Here, the IJ did not provide Cano “a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf,” as required by the Fifth Amendment’s guarantee of due process in deportation proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). Complicating review in this case is the IJ’s decision to go off the record to tell Cano before he had the opportunity to present oral testimony or documents in support of his application that he had no basis for an asylum claim. We know only that at some time during the recess the IJ explained" }, { "docid": "22132565", "title": "", "text": "L.Ed.2d 449 (2011). Judulang disapproved a BIA practice concerning the granting of § 212(c) relief. Invoking the change of law announced in Judulang, Tolchin filed on Bonilla’s behalf a supplement to his motion to reopen, asking the Board to exercise its sua sponte jurisdiction and reopen his deportation order so that he could apply for § 212(c) relief under Judulang. The Board denied Bonilla’s motion to reopen for adjustment of status. It held that equitable tolling of the filing period was not merited, as Bonilla did not demonstrate either due diligence or prejudice. In addition, the Board declined to exercise its sua sponte authority to reopen the deportation proceedings. Bonilla timely filed a petition for review. II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252 to review the Board’s denial of Bonilla’s motion to reopen for adjustment of status. See Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir. 2011). We review the Board’s denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo. See Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). “The BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (citation and internal quotation marks omitted). The Supreme Court recently left open the question “whether federal courts may review the Board’s decision not to reopen removal proceedings sua sponte.” Kucana v. Holder, 558 U.S. 233, 251 n.18, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). Before Kucana, we had held that, generally, we lack jurisdiction to review denials of sua sponte reopening. See Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002). But we have not specifically addressed whether we have jurisdiction to review the Board’s denial of a motion to reopen sua sponte for the limited purpose of determining whether the Board based its decision on legal or constitutional error. Several circuits have held that courts of appeal do have such limited jurisdiction. See, e.g., Salgado-Toribio v. Holder, 713 F.3d 1267, 1271 (10th Cir. 2013); Pllumi v. Attorney General, 642 F.3d 155," }, { "docid": "22132583", "title": "", "text": "e.g., Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003) (explaining that IIRIRA did not eliminate our jurisdiction over purely legal questions) (citing Molino-Estrada v. INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir. 2002)); Torres-Aguilar v. INS, 246 F.3d 1267, 1270-71 (9th Cir. 2001)- (holding that we had jurisdiction to review a BIA decision for the denial of due process). Our recent decision in Singh v. Holder, 771 F.3d 647 (9th Cir. 2014), confirms that we may review denials of' sua sponte reopening where, unlike in Ekimian and similar cases, there is “law to apply” in doing so. Singh argued in his petition for review that the Board abused its discretion when it erroneously concluded that it lacked authority under 8 C.F.R. § 1003.2(a) to reopen his exclusion proceedings so that he could pursue an adjustment of status application. Singh, 771 F.3d at 650. We concluded that “Ekimian [did] not preclude our jurisdiction.” Id. The jurisdictional bar announced in Ekimian, we explained, “rests on the absence of a judicially manageable standard for us to evaluate-the BIA’s exercise of discretion in ruling on a motion to reopen.” Id. In Singh, however, the BIA did not “deny[ ] a motion to reopen as an exercise of discretion”; it “conclude[d] that it lack[ed] the authority to reopen.” Id. Singh held that the Board’s conclusion as to its lack of authority was contrary to plain statutory -language and our court’s precedents, and thus was “legal error.” Id. at 653. Singh-then granted the petition for review and remanded the case to the Board for an exercise of its discretion— that is, for a decision whether there were truly exceptional circumstances, a decision that remains unreviewable under Ekimi-an. Id. Singh thus limited our review to the Board’s legal conclusion—that, because of legal preclusion, it could not exercise its discretion. There is little distinction as to judicial reviewability between the situation in Singh and the circumstances here. Bonil-la’s contention, upon which we elaborate below, is that the Board misunderstood the parameters of § 212(c) relief as applied" }, { "docid": "22669188", "title": "", "text": "Under these circumstances, we conclude that Cano was denied the right to an impartial adjudicator and to the evaluation of his case on its own merits. See Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir.2001). The IJ’s actions denied Cano due process and, therefore, was an abuse of discretion. Singh, 213 F.3d at 1052. In addition to demonstrating a due process violation, however, Cano is required to show prejudice, which means that “the IJ’s conduct ‘potentially [affected] the outcome of the proceedings.’ ” Colmenar, 210 F.3d at 972 (quoting Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1998)). Cano need not “explain exactly what evidence he would have presented” in support of his application, Colmenar, 210 F.3d at 972; and we “may infer prejudice in the absence of any specific allegation as to what evidence [Cano] would have presented ... had he been provided the opportunity to present that evidence.” Agyeman, 296 F.3d at 885. Cano submitted documents in support of his asylum claim with his motion to reopen and with his brief to the BIA, but he was denied the opportunity to present oral testimony at a hearing. This structural error denied Cano the basic opportunity to create a full and complete record susceptible of appeal and review, and it puts him in the impossible position of having to “produce a record that does not exist.” Perez-Lastor, 208 F.3d at 782. Because the IJ’s conduct undercut the normal course of the proceedings, Cano has demonstrated prejudice and a clear violation of his due process rights. Whether or not the IJ believed he was doing Cano a favor is irrelevant. As this case suggests, shortcuts frequently turn out to be mistakes. Accordingly, we grant Cano’s petition and remand to the BIA with instructions to remand to the IJ for a hearing as required by law on the merits of Cano’s asylum application. II Motion to Reopen Cano also appeals the BIA’s denial of his motion to reopen to seek relief under the Convention Against Torture (“Convention”). “The BIA has considerable discretion concerning motions to reopen.” Lainez-Ortiz v. INS, 96" }, { "docid": "23150115", "title": "", "text": "(9th Cir.2002); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Under IIRIRA’s transitional rules, we have jurisdiction to review the BIA’s denial of a motion to reopen under the now-repealed § 106(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1105a(a). See Rodriguez-Lariz, 282 F.3d at 1222; Socop-Gonzalez v. INS, 272 F.3d 1176, 1183 (9th Cir.2001) (en banc). The Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), supra note 2, provides that we may review claims under the Convention Against Torture only as part of review of a final order of removal. FARRA, § 2242(d). Denial of a motion to reopen to present a claim under the Convention qualifies as a final order of removal. See Khourassany v. INS, 208 F.3d 1096, 1099-1100 & n. 4 (9th Cir.2000). We therefore have jurisdiction to address Hamoui’s petition for review. We review for an abuse of discretion the BIA’s denial of a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004). The BIA abuses its discretion when it acts “ ‘arbitrarily, irrationally, or contrary to law.’ ” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). We review de novo questions of law and claims of due process violations in deportation proceedings. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002); Rodriguez-Lariz, 282 F.3d at 1222. We review the BIA’s factual findings for substantial evidence. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). II A Before the BIA, the INS did not contest Hamoui’s assertions that his failure timely to file a motion to reopen for purposes of a claim under the Convention Against Torture was due to the ineffective assistance of his prior counsel. The BIA recited the many failures of counsel and assumed deficient performance. We conclude that the attorneys’ constitutionally deficient performance was established. Ineffective assistance of counsel amounting to a due process violation permits untimely reopening. See Varela v. INS, 204 F.3d" }, { "docid": "22696616", "title": "", "text": "of removal” may be transferred to this Court. As Singh stated in his motion to reopen, the basis of his motion was the ineffective assistance of counsel that occurred during the administrative proceedings. It is thus clear that Singh’s motion to reopen is a challenge to the final order of removal. Accordingly, Singh’s habeas petition falls within the scope of RIDA’s transfer provision, and we construe the habeas petition as a timely filed petition for review. See Alvarez-Barajas, 418 F.3d at 1053. This changes the decision we review, and we now review the BIA’s decision, not the district court order. Id. In Fernandez v. Gonzales, we explained that this Court lacks jurisdiction over the BIA’s “denial of a motion to reopen that pertains only to the merits basis for a previously-made discretionary determination under [8 U.S.C. § 1252(a)(2)(B)®].” 439 F.3d 592, 603 (9th Cir.2006). Here, we have jurisdiction over the BIA’s denial of Singh’s motion to reopen because the proceedings below did not involve any of the enumerated provisions in § 1252(a)(2)(B)(I). See Ray v. Gonzales, 439 F.3d 582, 588-90 (9th Cir.2006) (exercising jurisdiction and finding that the petitioner was entitled to equitable tolling of the deadlines and numerical restrictions for the motion to reopen because he acted with appropriate diligence in discovering the deficient representation); Iturribarria v. INS, 321 F.3d 889, 897-99 (9th Cir.2003) (exercising jurisdiction over a claim of entitlement to equitable tolling and the particular issue of due diligence). We therefore conclude that we have jurisdiction over Singh’s habeas petition because it was a challenge to an order of removal “pending” in the district court at the time of enactment of the REAL ID Act and therefore falls within the scope of RIDA’s transfer provision. III. STANDARD OF REVIEW We review the BIA’s ruling on a motion to reopen for abuse of discretion. Nath v. Gonzales, 467 F.3d 1185, 1187 (9th Cir.2006). We review purely legal questions, such as due process claims, de novo. Itiurribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). IV. DISCUSSION Singh contends that the BIA erred in denying his motion to reopen" }, { "docid": "22763792", "title": "", "text": "subjective discretionary judgment that has been carved out of the court’s jurisdiction). We have held that traditional abuse of discretion challenges recast as alleged due process violations do not present sufficiently colorable constitutional questions as to give this court jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®) (holding that the petitioner’s argument that the Immigration Judge (“IJ”) violated her right to due process by misapplying the facts of her case to applicable law was “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction”). Here, the BIA’s denial of the motion to reconsider falls outside the court’s jurisdiction because the court cannot reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship. See Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding “where Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn”); see also Fernandez v. Gonzales, 439 F.3d 592, 601 (9th Cir.2006) (holding court lacks jurisdiction to review the BIA’s denial of a motion to reopen where the BIA already denied cancellation of removal on direct appeal based on failure to demonstrate exceptional and extremely unusual hardship, and the newly introduced evidence spoke to the same hardship). Accordingly, we lack jurisdiction to review the BIA’s denial of the motion to reconsider because petitioners’ contentions, namely that the agency failed to properly weight their hardship evidence, does not state a colorable due process claim. See Martinez-Rosas, supra, 424 F.3d at 930. Further, we lack jurisdiction to review petitioners’ contention that the agency abused its discretion in denying the motion to reopen to seek prosecutorial discretion based on the recent order of President Obama. See 8 U.S.C. § 1252(g); see also Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir.2001) (holding that section 1252(g) barred review of discretionary, quasi-prosecutorial decisions by asylum officers and INS district directors to adjudicate cases or refer them to immigration judges for hearing). Lastly, to the" }, { "docid": "19651137", "title": "", "text": "or nonstatuto-ry), ... except as provided in subpara-graph (D) ... no court shall have jurisdiction to review — (i) any judgment regarding the granting of relief under section 212(h), 212(i), 240A, 240B, or 245 [8 U.S.C. §§ 1182(h), 1182(h), 1229b, 1229c, or 1255].” Cancellation of removal is relief granted under the Immigration and Nationality Act’s section 240A. Section 1252(a)(2)(B)(i) “eliminates jurisdiction only over decisions by the BIA that involve the exercise of discretion .... [W]e retain jurisdiction over the BIA’s determination of ... purely legal and hence non-discretionary question[s] .... ” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144 (9th Cir.2002). A hardship determination is ordinarily discretionary, and therefore unreviewable under § 1252(a)(2)(B)(i) in petitions for review of direct appeals to. the BIA, unless the petition raises a cognizable legal or constitutional question concerning that determination. We so held in Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir. 2003), stating that we lack jurisdiction “to review the BIA’s discretionary determination that an alien failed to satisfy the ‘exceptional and extremely unusual hardship’ requirement for cancellation of removal.” Id. at 892; see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (reiterating after the REAL ID Act, Pub.L. No. 109-13, Div. B, 119 Stat. 231 (2005), that “we lack jurisdiction to review the IJ’s subjective, discretionary determination that Martinez-Rosas did not demonstrate ‘exceptional and extremely unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D)”). The case before us involves the denial of a motion to reopen, however, not a BIA decision on direct appeal from an IJ, and therefore presents a distinct question. Our most detailed analysis of § 1252(a)(2)(B)(i)’s effect on our jurisdiction to review motions to reopen that im plicate discretionary determinations appears in Medina-Morales v. Ashcroft, 371 F.3d 520 (9th Cir.2004). In that case, the petitioner withdrew his application for adjustment of status before the IJ, because his stepfather failed to appear at the removal hearing. He subsequently filed a motion to reopen with the IJ, accompanied by an affidavit from his stepfather explaining why he had not attended the hearing. Medina-Morales stated: [W]e conclude that § 1252(a)(2)(B)(i) does" }, { "docid": "22709634", "title": "", "text": "(9th Cir.1992) (holding that religious conscientious objectors did not establish religious persecution because they did not show that the government intended to persecute them for their beliefs). Finally, we conclude that the evidence is insufficient to compel a finding that Movsisian has a well-founded fear of persecution on account of his religious beliefs. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003) (holding that petitioner’s fear of future religious persecution was speculative). In failing to qualify for asylum, Movsisian necessarily failed to meet the more stringent standard of proof for withholding of deportation. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). B. Motion to Reopen and Remand Movsisian also challenges the BIA’s denial of his motion to reopen asylum proceedings. The motion to reopen, filed while his appeal was pending before the BIA, is treated as a motion to remand to the IJ for further proceedings. See Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1987); see also 8 C.F.R. § 1003.2(c)(4). We review the BIA’s denial of a motion to reopen and remand for abuse of discretion. See Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to the law.” Id. Movsisian contends that the BIA abused its discretion in denying his motion to reopen and remand without explanation. The government counters that the BIA is not required to articulate its reasons for denying a motion to reopen where, as here, the motion “is basically a thinly disguised attempt to relitigate” the merits. The government also contends that the BIA’s summary denial of Movsisian’s motion is consistent with the BIA’s streamlining procedures, which this court upheld in Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-52 (9th Cir.2003) (holding that the BIA’s summary affirmance procedure does not violate due process). Here, the BIA denied Movsisian’s motion to reopen stating, in toto: “The respondent’s motion to reopen is denied.” Unlike the BIA’s streamlining process, where the IJ’s decision becomes the final agency determination, see id. at 849, where the BIA entertains a motion to reopen in" }, { "docid": "22932236", "title": "", "text": "court. STANDARD OF REVIEW Because the BIA affirmed without opinion, this court directly reviews the immigration judge’s decision as though it were the decision of the BIA. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). This court reviews denial of a motion to reopen for abuse of discretion. Varela v. INS, 204 F.3d 1237, 1239 (9th Cir.2000). An immigration judge abuses his discretion when he acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). DISCUSSION The IJ should have recognized that exceptional circumstances justify granting Petitioner’s motion to reopen. In this unusual case, denial of Petitioner’s motion was arbitrary and irrational. Petitioner’s order to show cause was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) became effective. Therefore, pre-IIRIRA rules regarding motions to reopen apply here. Under § 242B(3) of the Immigration and Nationality Act, the court should grant a motion to reopen an in absentia order where “exceptional circumstances” exist or where the alien was not afforded statutorily required notice. The pre-IIRIRA exceptional circumstances rule allows the court to reopen a ease based on a compelling factual situation. See 8 U.S.C. § 1252b(f)(2) (repealed 1996). The court examines the “particu larized facts presented in each case” to determine if exceptional circumstances exist. Singh, 213 F.3d at 1052. The text of § 1252b(f)(2) suggests that the exceptional circumstances supporting a motion to reopen must relate to the reason for missing the hearing, But we made clear in Singh v. INS, 295 F.3d 1037, 1038-40 (9th Cir.2002), that we consider all exceptional — i.e., compelling — circumstances relevant to a petitioner’s motion to reopen. A motion to reopen may be supported by exceptional circumstances even where the petitioner missed her hearing because of unexceptional circumstances, for instance, misunderstanding the scheduled time of her hearing. Id. Singh presented unusual facts like those presented here. In Singh, the IJ denied a motion to reopen an in absentia deportation order where Singh appeared at 1:00 p.m. for a hearing scheduled two hours earlier, and the BIA affirmed. Id. at 1038-39. On appeal," }, { "docid": "22197099", "title": "", "text": "September 7, 2001. On November 8, 1999, the IJ denied Prado’s application for suspension of deportation on the ground that she had not shown the requisite level of hardship to herself or her U.S. citizen children. Prado filed a pro se appeal, allegedly prepared by Ms. Rodriguez. On January 8, 2003, the BIA affirmed the denial of suspension of deportation without an opinion. The BIA. denied Prado’s subsequent pro se motion to reconsider on the merits on July 16, 2003. On October 14, 2003, almost four years after Hernandez’s appeal was dismissed and ten months after Prado’s appeal was dismissed, petitioners, now represented by current counsel, filed a motion to reopen. They argued that they were denied due process and are entitled to have their de portation proceedings reopened because of the deficient assistance they received from Ms. Rodriguez. On April 28, 2004, the BIA denied their motion, and petitioners timely filed this petition for review. II. STANDARD OF REVIEW This court reviews the BIA’s ruling on a motion to reopen for abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Questions of law, as well as claims of due process violations, are reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000). III. ANALYSIS Petitioners claim their deportation proceedings warrant reopening because their due process rights were violated by the deficient assistance of an immigration consultant. They assert an ineffective assistance of counsel claim even though they concede they did not retain counsel. The BIA found that petitioners could not base such a claim on the deficient advice of a non-attorney, relying on our decision in Singh-Bhathal v. INS 170 F.3d 943 (9th Cir.1999). In Singh-Bhathal, we held that reliance on the mistaken advice of a non-attorney immigration consultant was insufficient to demonstrate the “exceptional circumstances” necessary for reopening an in absentia deportation order. Id. at 946-47. “Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.” Lopez v." }, { "docid": "22763790", "title": "", "text": "ORDER Luis Jesus Vilchiz-Soto and Obdulia Resendiz-Ledesma, natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen removal proceedings and reconsider a previous denial of their application for cancellation of removal. The BIA denied the motion to reconsider because petitioners failed to demonstrate any error of fact or law in the BIA’s September 22, 2011 decision, which was based on petitioners’ failure to demonstrate “exceptional and extremely unusual hardship” to their qualifying relatives. 8 C.F.R. § 1003.2(b)(1). The BIA also denied the motion to reopen because petitioners did not demonstrate reopening would be proper under 8 C.F.R. § 1003.2(c)(1). The government contends that we lack jurisdiction to review the denial of the motion to reconsider because petitioners’ challenge is nothing more than a challenge to the BIA’s discretionary determination that petitioners failed to establish that their removal would cause the requisite hardship to their qualifying relatives. Petitioners contend that we do have jurisdiction because they are not challenging the BIA’s discretionary determinations but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a" }, { "docid": "22763791", "title": "", "text": "but instead, are challenging the BIA’s denial of the reconsideration motion on the ground that the BIA applied the wrong legal standard and failed to consider petitioners’ equities in support of their claim for cancellation of removal. Under 8 U.S.C. § 1252, we have jurisdiction to review final orders of removal. See Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.2008). However, absent a colorable legal or constitutional claim, we lack jurisdiction to review the BIA’s discretionary determination that an alien failed to prove that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. See 8 U.S.C. § 1252(a)(2)(B)® (stating in relevant part that “[njotwithstanding any other provision of law, no court shall have jurisdiction to review—-any judgment regarding the granting of relief under section ... 1229b [cancellation of removal]”). See also Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003) (holding that an exceptional and extremely unusual hardship determination is a subjective discretionary judgment that has been carved out of the court’s jurisdiction). We have held that traditional abuse of discretion challenges recast as alleged due process violations do not present sufficiently colorable constitutional questions as to give this court jurisdiction. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)®) (holding that the petitioner’s argument that the Immigration Judge (“IJ”) violated her right to due process by misapplying the facts of her case to applicable law was “nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction”). Here, the BIA’s denial of the motion to reconsider falls outside the court’s jurisdiction because the court cannot reconsider the discretionary, fact-based determination that petitioners failed to demonstrate the requisite hardship. See Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir.1997) (holding “where Congress explicitly withdraws our jurisdiction to review a final order of deportation, our authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn”); see also Fernandez" }, { "docid": "22746752", "title": "", "text": "car overheated again. He left his car and found a bus that would get him to the courthouse. As a result of his car’s mechanical failure, Perez arrived at the courthouse approximately two hours after his scheduled hearing time. When Perez entered the courtroom, around 11:00 AM, the IJ was still on the bench. Perez approached the IJ’s assistant and handed her his notice of the removal hearing. At that moment, the IJ stood and left the courtroom. The assistant informed Perez that “[I]t is too late. The Judge is done for the day.” The IJ issued a decision that same day ordering Perez removed in absentia. Perez, proceeding pro se, filed a timely motion to reopen. The IJ denied the motion reasoning that Perez “failed to show that his failure to appear was due to exceptional circumstances” as required by 8 U.S.C. § 1229a(b)(5)(C). The BIA summarily affirmed the IJ’s decision. Perez, now represented by counsel, seeks review of the BIA’s adverse decision. II. Standard of Review Where, as here, the BIA uses its summary affirmance procedure, “the IJ’s decision becomes the BIA’s decision and we evaluate the IJ’s decision as we would that of the Board.” Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir.2004) (internal citation and quotation marks omitted). Although the BIA’s summary affirmance “ ‘only means that the BIA deemed any errors by the IJ to be harmless,’ as a practical matter, we may review only the reasoning presented by the IJ.” Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.2004) (internal citations omitted). We review the denial of a motion to reopen for abuse of discretion. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005); Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). The agency’s decision is only reversed if it is “ ‘arbitrary, irrational, or contrary to law.’ ” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (quoting Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)). III. Discussion The Immigration and Nationality Act (“INA”) provides that an alien who fails to appear at an immigration proceeding “shall be ordered" } ]

[ { "docid": "22744747", "title": "", "text": "any other relevant factor, may be taken into account, no single factor is required. Ill Forklift, while conceding that a requirement that the conduct seriously affect psychological well-being is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environment was not “intimidating or abusive to [Harris],” App. to Pet. for Cert. A-35, it did so only after finding that the conduct was not “so severe as to be expected to seriously affect plaintiff’s psychological well-being,” id., at A-34, and that Harris was not “subjectively so offended that she suffered injury,” ibid. The District Court’s application of these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a “close case,” id., at A-31. We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. So ordered. Justice Scalia, concurring. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), held that Title VII prohibits sexual harassment that takes the form of a hostile work environment. The Court stated that sexual harassment is actionable if it is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Id., at 67 (quoting Henson v. Dundee, 682 F. 2d 897, 904 (CA11 1982)). Today’s opinion elaborates that the challenged conduct must be severe or pervasive enough “to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.” Ante, at 21. “Abusive” (or “hostile,” which in this context I take to mean the same thing) does not seem to me a very clear standard — and I do not think clarity is at all increased by adding the adverb “objectively” or by appealing to a “reasonable person[’s]” notion of what the vague word means. Today’s opinion does list a number of factors that contribute to abusiveness, see ante, at 28, but since it neither says how much of each is necessary (an impossible" } ]

[ { "docid": "23574266", "title": "", "text": "a subjective standard: The conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive. Id. at 21-22, 114 S.Ct. at 370-71. “This standard ... takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury.” Id. at 21, 114 S.Ct. at 370. Acknowledging that this approach is not susceptible to a “mathematically precise test,” id. at 22, 114 S.Ct. at 371, the Court then sought to provide some guidance with regard to the somewhat elusive question of whether a work environment was objectively hostile or abusive. The Court explained that all of the circumstances should be considered, and it suggested a non-exhaustive list of relevant factors: [T]he frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. at 23, 114 S.Ct. at 371. Defendant concedes that verbal conduct alone can be the basis of a successful hostile work environment claim. However, it asserts that such conduct must be objectively hostile or abusive before it can be legally proscribed. Defendant maintains that here the verbal conduct simply did not rise to that level and that therefore the evidence does not support a finding of sexual harassment. We agree with defendant. Given the imprecise standard laid down by the Harris Court, we might be reluctant to overturn a jury verdict in favor of plaintiff. Nevertheless, although the comments were sex-based, we hold that the evidence is insufficient to support a finding that they were severe or pervasive enough to create an objectively hostile work environment. Our conclusion is not based upon an analysis of the comments as isolated events. Rather, viewing" }, { "docid": "3709324", "title": "", "text": "severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (citation omitted). This standard has both objective and subjective components: the work environment must be one that a reasonable person in the plaintiff’s position would find hostile or abusive, and the plaintiff must actually perceive the environment to be hostile or abusive. Id. The objective prong requires the Court to evaluate the “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee’s work performance.” Baloeh v. Kempthome, 550 F.3d 1191,1201 (D.C.Cir.2008) (citing Faragher, 524 U.S. at 787-88, 118 S.Ct. 2275). “[A] few isolated incidents of offensive conduct do not amount to actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C.Cir. 2002). The Plaintiff argues the events at issue in Harrison I and discussed in Counts I through V constituted a retaliatory hostile work environment. The Court granted summary judgment in favor of the Defendant in Harrison I in relevant part because the Plaintiff failed to produce any evidence that the events at issue were motivated by a retaliatory animus. Harrison I, 964 F.Supp.2d at 77-78, 2013 WL 4676110, at *5-*8. Furthermore, as explained above, the Plaintiff failed to produce sufficient evidence from which a reasonable jury could conclude that the search of the Plaintiffs coat or issuance of the performance improvement plan were motivated by retaliatory animus. Thus, the events that may comprise the Plaintiffs hostile work environment claim are listed below, in chronological order: • On May 8, 2009, the Plaintiff was informed by Ms. Tiscione her temporary detail would end and she would be returning to the Training Branch in June; • On or about October 30, 2009, Ms. Bailey and Mr. Cassil instructed the Plaintiff not to bring a recording device to the workplace; • In late October/early November 2009, the EEO/CP issued a final decision regarding the grievance procedures from the Executive Director rather than the Architect of the" }, { "docid": "22285676", "title": "", "text": "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. As to the objective measure of abuse, “[tjhere is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 439 (2d Cir.1999) (internal quotation marks omitted). To succeed, a plaintiff must demonstrate “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000) (internal quotation marks omitted). The Supreme Court has set forth a non-exclusive list of factors to consider when evaluating a workplace environment, consisting of the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-be ing is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23, 114 S.Ct. 367. Because the Supreme Court has stated that no single factor from this list is necessarily required, the district court erred in stating that Raniola must prove that she was “intimidated in terms of her work or suffered ... [an] inability or difficulty in performing her work” in order for her claim to succeed. Viewing the evidence in its totality, we conclude that there was sufficient proof for a reasonable jury to find that Raniola’s abuse was so severe and pervasive as to constitute a hostile work environment in violation of Title VII. Taking all of the evidence and proffers of testimony in the light most favorable to Raniola, the record discloses that within" }, { "docid": "18242268", "title": "", "text": "makes an employee unhappy is an actionable adverse action.” Broderick v. Donaldson, 437 F.3d 1226, 1233 (D.C.Cir.2006). In fact, even when abusive behavior is “ ‘motivated by discriminatory animus,’ ” it may not be actionable. Stewart v. Evans, 275 F.3d 1126, 1133 (D.C.Cir.2002) (quoting Barbour, 181 F.3d at 1347). The conduct complained of “must be extreme to amount to a change in the terms and conditions of employment.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (emphasis added). This standard is designed to be “sufficiently demanding” so that anti-discrimination statutes do not become “‘general civility code[s].’ ” Id. (quoting Oncale, 523 U.S. at 80, 118 S.Ct. 998). See also Vickers v. Powell, 493 F.3d 186, 198-201 (D.C.Cir. 2007) (noting that district court correctly concluded that hostile work environment was not created solely by three incidents that involved being “singled out for a requirement to provide inordinate amounts of medical information to support requests for leave,” poor performance evaluations, supervisor’s “angry threats,” and derogatory comments about minorities). In short, the acts that plaintiff complains about are simply not the type of “discriminatory intimidation, ridicule, and insult’ that are ‘sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’ ” Baloch, 550 F.3d at 1201 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). Moreover, plaintiff cannot rely on the discrete acts upon which she bases her discrimination and retaliation claims to support her hostile work environment claim. “Because plaintiffs allegedly ‘hostile’ events ‘are the very employment ac tions [s]he claims are retaliatory!],] [s]he cannot so easily bootstrap alleged retaliatory incidents into a broader hostile work environment claim.’ ” Franklin, 600 F.Supp.2d at 76 (quoting Keeley, 391 F.Supp.2d at 51); accord Smith v. Jackson, 539 F.Supp.2d 116, 138 (D.D.C.2008) (“[I]nsofar as Plaintiff attempts to base his hostile work environment claim on his [compressed work schedule] revocation and AWOL charge, he cannot simply regurgitate his disparate treatment claims in an effort to flesh out a hostile work environment claim.”). “Cobbling together a number of distinct, disparate acts will not create a hostile work environment, because ‘[discrete" }, { "docid": "23210495", "title": "", "text": "U.S. at 64, 106 S.Ct. 2399 (emphasis added). “[S]ex discrimination consisting of same-sex sexual harassment is actionable under Title VII....” Oncale, 523 U.S. at 82, 118 S.Ct. 998. “For sexual harassment to be actionable, it must be sufficiently severe or pervasive,” Meritor, 477 U.S. at 67, 106 S.Ct. 2399 — both subjectively and objectively, see, e.g., Harris, 510 U.S. at 21-22, 114 S.Ct. 367 — “to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor, 477 U.S. at 67, 106 S.Ct. 2399 (internal quotation marks omitted). And, of course, the plaintiff must establish that the hostile or abusive treatment was because of his or her sex. See, e.g., Oncale, 523 U.S. at 80, 118 S.Ct. 998. “When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ ... Title VII is violated.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. 2399). “[T]he kinds of workplace conduct that may be actionable under Title VII .... include ‘[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.’ ” Meritor, 477 U.S. at 65, 106 S.Ct. 2399 (quoting 29 C.F.R. § 1604.11(a) (1985)). “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.” Harris, 510 U.S. at 23, 114 S.Ct. 367. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. (emphases added). To “establish ] this element, a plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or" }, { "docid": "12312636", "title": "", "text": "the CSPs including picking up lunch, beer, and cigarettes, dropping-off laundry, and paying their personal bills (doc. 63, exhs. A:71; B:190). Additionally, they were not permitted to use the break room, which was primarily for the male ATI employees (id. at exh. B:205-07). Defendants’ final challenge to the prima facie ease is that Plaintiffs are unable to demonstrate that the sexual harassment complained of affected a “term, condition, or privilege” of employment (doc. 61:15). In evaluating whether the harassment affected their employment, a court must engage in a multi-factor inquiry and achieve a balance between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VIPs purview. Likewise, if 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.” Id. The Court further explained the importance of considering the totality of the circumstance when determining whether an environment is both objectively and subjectively hostile: [Wjhether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive, but while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23,114 S.Ct. at 371. In light of the Court’s guidance in Harris, this Court now finds that genuine issues of material fact exist as to whether, when looking at all the circumstances surrounding Plaintiffs, the environment at ATI was objectively hostile or" }, { "docid": "14271817", "title": "", "text": "injury, although the presence of such an injury is clearly a factor which can be considered. Rather, Title VII requires that the adjudicator look at: all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, supra, 510 U.S. at —, 114 S.Ct. at 371, 126 L.Ed.2d at 302-303. It is also clear that: ‘mere utterance of an ... epithet which engenders offensive feelings in an employee’ ... does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is' beyond Title VII’s purview. Harris v. Forklift Systems, 510 U.S. at —, 114 S.Ct. at 370, 126 L.Ed.2d at 302 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Morehouse contends that the plaintiff has not established that the harassment was sufficiently severe or pervasive to state a claim; and that if the harassment was sufficiently severe or pervasive, Morehouse took prompt, remedial action once it learned of it. Through her deposition testimony, the plaintiff has established that she was subjected to unwelcome sexual harassment based on sex from Harris and Braithwaite, including unwanted touching, lewd and vulgar comments, sexual advances, and a sexual assault. She has also established (1) that she subjectively found the harassment to be so severe as to make her work environment hostile and abusive; and (2) that a reasonable person would have found the harassment equally severe. Indeed, although it may be argued whether the harassment in the instant case was pervasive or frequent enough to meet the governing standard," }, { "docid": "22268945", "title": "", "text": "also encompasses sexual harassment that results in a “hostile or abusive work environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); see also Equal Employment Opportunity Commission Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11 (2000) (“EEOC Guidelines”); id. § 1604.11(a) (sexual harassment includes “conduct [that] has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment”). In order to prevail on a claim of hostile-work-environment sexual harassment, a plaintiff must establish two elements. First, she must prove that the harassment was “sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367 (internal quotation marks omitted); see, e.g., Meritor Savings Bank, FSB v. Vinson, 477 U.S. at 67, 106 S.Ct. 2399; Perry v. Ethan Allen, Inc., 115 F.3d 143,149 (2d Cir.1997); Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1041 (2d Cir.1993). Title VII does not authorize a hostile work environment claim for conduct that was merely offensive, rather than sufficiently “severe or pervasive” that a reasonable person would find the environment hostile or abusive. See, e.g., Harris v. Forklift Systems, Inc., 510 U.S. at 21, 114 S.Ct. 367; Mentor Savings Bank, FSB v. Vinson, 477 U.S. at 67, 106 S.Ct. 2399 (“[N]ot all workplace conduct that may be described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the meaning of Title VIL”). [W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor' is required. Harris v. Forklift Systems," }, { "docid": "22207566", "title": "", "text": "at 2404-05 (1986)); Lipsett, 864 F.2d at 898. While a court must consider all of the circumstances in determining whether a plaintiff has established that an environment is hostile or abusive, it must be particularly concerned with (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating rather than a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance. See Harris, — U.S. at-, 114 S.Ct. at 371. Although the presence or absence of psychological harm or an unreasonable effect on work performance are relevant, no single factor is required. See id. The Court has explained that the relevant factors must be viewed both objectively and subjectively. See id. at-, 114 S.Ct. at 370. If the conduct is not so severe or pervasive that a reasonable person would find it hostile or abusive, it is beyond Title IX’s purview. See id. Similarly, if the plaintiff does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of her employment, and there is no Title IX violation. See id. Thus, the court must consider not only the actual effect of the harassment on the plaintiff, but also the effect such conduct would have on a reasonable person in the plaintiffs position. Turning to the case at bar, we find that the facts alleged here are insufficient to state a claim for sexual harassment under a hostile environment theory. The plaintiffs’ allegations are weak on every one of the Harris factors, and when considered in sum, are clearly insufficient to establish the existence of an objectively hostile or abusive environment. First, plaintiffs cannot claim that the offensive speech occurred frequently, as they allege only a one-time exposure to the comments. We also think that the plaintiffs’ allegations do not establish that Landolphi’s comments were so severe as to create an objectively hostile environment. This finding is based on both the context and content of her remarks. The remarks were given to the entire ninth and tenth grades at what the defendants labelled an" }, { "docid": "15918861", "title": "", "text": "the Sheriff “failed to promptly investigate or mitigate [her] situation,” resulting in Deputy Mann and his friends being able to continue harassing Satterfield. Id. at ¶¶ 64-65, 72-73. The Sheriff concedes that Satterfield can meet the first three elements of the hostile work environment test, but with respect to the fourth and fifth elements—whether the work environment was “severe or pervasive” and whether the Sheriff took “prompt and appropriate corrective action”—he argues that no evidence exists on which a reasonable jury could base a finding in Satterfield’s favor. 1. A Reasonable Jury Could Find that the Work Environment was Severe or Pervasive. The Supreme Court has made clear that “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor, 477 U.S. at 65, 67, 106 S.Ct. 2399). Furthermore, courts should look at the totality of the circumstances when considering whether harassment was so severe or pervasive that it created a hostile work environment. Id. at 23, 114 S.Ct. 367. Indeed, “courts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility.” Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir.1999). Factors relevant to this inquiry include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23, 114 S.Ct. 367. When undertaking this inquiry, the “real social impact” of the harassment in the workplace is what matters. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81-82, 118" }, { "docid": "15400354", "title": "", "text": "that in light of court’s conclusion that no hostile work environment existed when petitioner left her place of employment, she cannot prove “the necessary predicate to maintain a constructive discharge claim”), cert. denied, —— U.S. -, 118 S.Ct. 1079, 140 L.Ed.2d 137 (1998); Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir.1992) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.”). Because the jury, with all of Hernández’ evidence on his retaliation claim before it, returned an adverse verdict on his hostile work environment claim, he cannot succeed on his retaliatory constructive discharge claim. Hernández argues that another jury might find the requisite hostile work environment, but he has had his day in court and is not entitled to a new trial on that speculation alone. The jury having rejected the hostile work environment claim, it necessarily rejected the basis for the retaliatory constructive discharge claim. II. REJECTION OF PROFFERED HARRIS INSTRUCTION The district court’s hostile work environment instruction correctly informed the jury of the requisite elements of Hernández’ claim, stating in pertinent part: You must determine whether there was hostile religious harassment based on the totality of the circumstances, and you may consider the following factors: The total physical environment of the plaintiffs work area; the nature of the unwelcome acts or words; the frequency of the offensive encounters; the severity of the conduct; and the context in which the religious harassment occurred; whether the conduct was unwelcome; and the effect o[n] the plaintiffs psychological well-being. Hernández unpersuasively argues that the court failed to follow Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), when it refused to instruct the jury that “to be actionable, a hostile environment need not seriously affect an employee’s psychological well-being or lead the employee to suffer injury.” The court’s instruction, fairly read, conforms to the Harris Court’s holding that “while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” Id. at" }, { "docid": "14271816", "title": "", "text": "and/or supervisor; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a “term, condition, or privilege of employment;” and (5) responde-at superior (i.e. the employer knew, or should have known of the conduct of the harasser(s) and failed to take prompt remedial action). Henson v. City of Dundee, 682 F.2d 897, 903-905 (11th Cir.1982). The standard for determining whether the harassment affected a term, condition or privilege of employment amounts to a two-part test: The harassment must be “sufficiently severe or pervasive” to create (1) a work environment that a reasonable person would find hostile or abusive; and that (2) the employee actually found to be hostile or abusive. Harris v. Forklift Systems, supra, 510 U.S. at —, 114 S.Ct. at 370, 126 L.Ed.2d at 301-02. In order to show the existence of a hostile or abusive work environment, Title VII does not require that the aggrieved employee suffer a nervous breakdown. Neither is it necessary that a hostile or abusive workplace violative of Title VII create a psychological injury, although the presence of such an injury is clearly a factor which can be considered. Rather, Title VII requires that the adjudicator look at: all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, supra, 510 U.S. at —, 114 S.Ct. at 371, 126 L.Ed.2d at 302-303. It is also clear that: ‘mere utterance of an ... epithet which engenders offensive feelings in an employee’ ... does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive" }, { "docid": "22456360", "title": "", "text": "Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir.1992). Absent certain defenses that are not at issue on this appeal, an employer is presumed to be responsible where the perpetrator of the harassment was the plaintiffs supervisor. See, e.g., Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Ra-ton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Perry, 115 F.3d at 152-53. As to “whether an environment is ‘hostile’ or ‘abusive,’ ” Harris stated that that matter “can be determined only by looking at all the circumstances.” 510 U.S. at 23, 114 S.Ct. 367 (emphasis added). These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. (emphases added). Because the analysis of severity and pervasiveness looks to the totality of the circumstances, “the crucial inquiry focuses on the nature of the workplace environment as a whole,” and “a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.” Cruz, 202 F.3d at 570 (emphases added); see, e.g., Perry, 115 F.3d at 150-51. Harris also established that both an objective and a subjective standard must be met to prove the existence of a hostile work environment violative of Title VII: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII’s purview. Likewise, if 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" }, { "docid": "23574267", "title": "", "text": "of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id. at 23, 114 S.Ct. at 371. Defendant concedes that verbal conduct alone can be the basis of a successful hostile work environment claim. However, it asserts that such conduct must be objectively hostile or abusive before it can be legally proscribed. Defendant maintains that here the verbal conduct simply did not rise to that level and that therefore the evidence does not support a finding of sexual harassment. We agree with defendant. Given the imprecise standard laid down by the Harris Court, we might be reluctant to overturn a jury verdict in favor of plaintiff. Nevertheless, although the comments were sex-based, we hold that the evidence is insufficient to support a finding that they were severe or pervasive enough to create an objectively hostile work environment. Our conclusion is not based upon an analysis of the comments as isolated events. Rather, viewing the totality of the circumstances, see Harris, 510 U.S. at 23, 114 S.Ct. at 371, we find that even when construed in a light most favorable to the plaintiff, the conduct does not appear to have been more than “merely offensive,” id. at 21, 114 S.Ct. at 370. While we emphasize that sex-based comments need not be directed at a plaintiff in order to constitute conduct violating Title VII, we note that in this case most of the comments were not directed at plaintiff; this fact contributes to our conclusion that the conduct here was not severe enough to create an objectively hostile environment. See cf. Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 541 (1st Cir.1995) (finding that plaintiffs’ allegations were not so severe as to create an objectively hostile educational environment under Title IX, in part because the sexual comments were not directed at the plaintiffs), cert. denied, — U.S. —, 116 S.Ct. 1044, 134 L.Ed.2d 191 (1996). Although the verbal comments were offensive and inappropriate, and the record suggests" }, { "docid": "5606289", "title": "", "text": "U.S. 57, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986); Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998). Additionally, as noted previously, Hernandez-Loring contends that the “hostile work environment” created by Diaz-Rivera and Chancellor Rene Labarca before, during, and after her petition for tenure compelled her to resign and seek employment elsewhere. In order for plaintiff HernandezLoring to successfully bring a “hostile environment” sexual harassment claims, she must prove that: 1. she belongs to a protected group; 2. she was subjected to unwelcome sexual harassment; 3. the harassment was based on sex; 4. the harassment affected a term, condition or privilege of employment and; 5. the employer knew or should have known of the harassment and failed to take proper remedial action. Meritor Savings Bank v. Vinson, 106 S.Ct. at 2404; Ruiz v. Caribbean, 54 F.Supp.2d 97. Furthermore, plaintiff must allege that defendants actions were sufficiently severe or pervasive enough as to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive. Harris, 114 S.Ct. at 370. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998). In order for the Court to determine whether an environment is “hostile” or “abusive,” it must look at all the circumstances. These may include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.” Harris, 114 S.Ct. at 370; Faragher, 118 S.Ct. at 2283. Pursuant to plaintiffs claim that the “hostile work environment” at the Univer-sidad Metropolitana led to her “constructive discharge,” we must define the legal term of art, “constructive discharge.” The First Circuit has noted in Greenberg v. Union Camp. Corp., 48 F.3d 22, 27" }, { "docid": "3249507", "title": "", "text": "524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris). Nor does Title VII prohibit “genuine but innocuous differences” in the ways that persons interact with each other in the workplace. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Rather, the objectionable conduct must be such as to create a work environment that is “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787, 118 S.Ct. 2275 (citing Harris); see also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir.2001). Although there is no precise test for determining whether a work environment is sufficiently hostile to be actionable under Title VII, the Supreme Court in Harris outlined the following factors for consideration in making the determination: [WJhether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Id., 114 S.Ct. at 369. In Causey v. Balog, 162 F.3d 795 (4th Cir.1998), the Fourth Circuit described the following elements which the plaintiff must demonstrate to establish a prima facie case for a hostile work environment claim: The plaintiff must show that (1) the harassment was unwelcome; (2) that the harassment was based on [race]; (3) that the harassment was sufficiently pervasive or severe to alter the conditions of employment and create an abusive atmosphere; and (4) that some basis exists for imposing liability on the employer. Id. at 801 (citation omitted); see Spriggs, 242 F.3d at 183-84. B In this case, Collier’s claims arise from the" }, { "docid": "12312637", "title": "", "text": "altered the conditions of the victim’s employment, and there is no Title VII violation.” Id. The Court further explained the importance of considering the totality of the circumstance when determining whether an environment is both objectively and subjectively hostile: [Wjhether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive, but while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23,114 S.Ct. at 371. In light of the Court’s guidance in Harris, this Court now finds that genuine issues of material fact exist as to whether, when looking at all the circumstances surrounding Plaintiffs, the environment at ATI was objectively hostile or abusive. Here, the frequent instances of allegedly harassing behavior raise at least a question of fact as to whether Plaintiffs were subject to unwelcome harassment on the basis of their sex. It is also significant to note that there were several isolated incidents where only female employees were subjected to harassing behavior, such as being asked to dust, sweep, mop, and clean the bathrooms (doc. 63, exhs. A:75; B:149-50). Although these incidents did not occur with the frequency of other harassing conduct, they are still helpful when proceeding under a totality of the circumstances analysis. Furthermore, the Court concludes that Plaintiffs subjectively perceived their workplace as hostile and abusive, thus satisfying the two-pronged requirement that the environment be reasonably perceived, and is perceived, as hostile or abusive. See Harris, 510 U.S. at 22-23, 114 S.Ct. at 371 (citing Mentor, 477 U.S. at 67, 106 S.Ct. at 2405). Plaintiff King quit her job at ATI because of the abusive treatment she received there during her second term of employment; her resignation ultimately coming immediately after being" }, { "docid": "12429481", "title": "", "text": "environment in violation of Title VII. To support a prima facie case of a hostile work environment, the plaintiff must demonstrate that the “work place is permeated with discriminatory intimidation, ridicule, and insult that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal citations omitted). “Conduct that is not severe or pervasive enough to create an objectively hostile work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VIPs purview. Likewise, if 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.” Id. at 21-22, 114 S.Ct. 367. In determining whether an environment is hostile or abusive the court must look at all the circumstances. Id. at 23, 114 S.Ct. 367. These may include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive. Id. at 23, 114 S.Ct. 367. “[N]o single factor is required.” Id. In Bolden v. PRC Inc., 43 F.3d 545 (10th Cir.1994), an analytical framework was provided for determining whether a plaintiff had presented sufficient evidence to demonstrate a genuine issue of material fact in dispute. The plaintiff in Bolden was required to show, based upon the totality of the circumstances, that: “(1) the harassment was pervasive or severe enough to alter the terms, conditions, or privileges of employment, and (2) the harassment was racial or stemmed from racial animus.” Id. at 551. Accordingly, in this case, we must determine whether the alleged conduct was (1) pervasive or severe enough to alter the terms, conditions, or privileges of employment; and (2) whether the evidence demonstrates that the acts complained of were gender or national origin" }, { "docid": "15918862", "title": "", "text": "the totality of the circumstances when considering whether harassment was so severe or pervasive that it created a hostile work environment. Id. at 23, 114 S.Ct. 367. Indeed, “courts must be mindful of the need to review the work environment as a whole, rather than focusing single-mindedly on individual acts of alleged hostility.” Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir.1999). Factors relevant to this inquiry include: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris, 510 U.S. at 23, 114 S.Ct. 367. When undertaking this inquiry, the “real social impact” of the harassment in the workplace is what matters. Oncale v. Sundowner Offshore Services, 523 U.S. 75, 81-82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). This “often depends on a constel lation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 82, 118 S.Ct. 998. The inquiry also includes objective and subjective components; Satterfield must show both that the environment was so severe or pervasive that a reasonable observer would find it objectively hostile, and that she subjectively regarded it as abusive. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. Moreover, “the conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur hut for the employee’s gender may, if sufficiently severe or pervasive under the Hams standard, constitute a hostile environment in violation of Title VII.” Williams, 187 F.3d at 565 (emphasis in original). There are two main fronts to the Sheriffs argument that the harassment was not severe or pervasive: he argues first that some of Mann’s actions should not be part of" }, { "docid": "6686431", "title": "", "text": "create a hostile or offensive work environment must be determined from the totality of the circumstances. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987) (citations omitted). To prove a hostile work environment claim under Title VII, the plaintiff must show: (1) that the conduct in question was unwelcome; (2) that the harassment was based on sex; (3) that the harassment was sufficiently pervasive or severe to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer. Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir.1989). There is no dispute that Renner’s conduct was unwelcome or that the conduct complained of was based on sex. Whether Renner’s harassment was sufficiently severe or pervasive is “quintessentially” a question of fact and summary judgment is not appropriate unless, accepting plaintiffs evidence as true and drawing all reasonable inferences in her favor, the trier of fact could not reasonably conclude that Renner’s conduct was so severe or pervasive as to create an abusive work environment. Id. To determine whether harassment was sufficiently severe or pervasive, the trier of fact must examine the evidence both from an objective perspective and from the point of view of the victim. The Court cannot focus solely on the plaintiffs subjective reaction, because “[a]n employee may not be unreasonably sensitive to his [or her] working environment.” Id. at 105 (citations omitted). In order to prevail on a hostile environment claim, the plaintiff must first demonstrate that the harassment interfered with her ability to perform her work or that it significantly affected her psychological well-being. If the plaintiff satisfies this burden, then the trier of fact must determine whether the harassment would interfere with the work performance or significantly affect the psychological well-being of a reasonable person in the plaintiffs position. Id. This inquiry involves the determination of issues of material fact precluding the entry of summary judgment. Assuming that the trier of fact were to find that Renner’s actions were sufficiently severe or pervasive as to alter plaintiffs employment conditions, there remains the inquiry as to whether that" } ]

[ { "docid": "19032556", "title": "", "text": "to time served. In 2007, Hergott was again charged with violating the terms of his supervised release by committing felony assault and failing to complete a required substance abuse treatment program. He admitted the allegations and received the sentence at issue on this appeal. At his sentencing on the 2007 violation, the district judge revoked Hergott’s supervised release and sentenced him to sixty months’ imprisonment. Under the version of 18 U.S.C. § 3583(e)(3) in effect at the time of sentencing, sixty months was the maximum sentence allowable where the violator’s original offense was a Class A felony. This was an upward departure from the eighteen to twenty-four months recommended by the U.S. Sentencing Guidelines. Hergott objected to the sentence, arguing that the district court was required to apply the version of § 3583(e)(3) in effect at the time he committed the original offense, and therefore the sixty-month sentence must be reduced by the seventy-two days he served on the first revocation. Nonetheless, the district court entered a sentence of sixty months’ imprisonment with no supervised release to follow. I. Hergott appeals his sentence as illegal, arguing that it exceeds the statutory maximum contained in the version of 18 U.S.C. § 3583(e)(3) in effect on July 19, 2002, the date of his methamphetamine and firearm convictions. We review the legality of a revocation sentence de novo. United States v. Lewis, 519 F.3d 822, 824 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 166, 172 L.Ed.2d 120 (2008). Hergott argues that under the correct version of § 3583(e)(3), the statutory maximum term of imprisonment for revocation of supervised release is sixty months minus any time served on previous revocations related to the same conviction. See id. (“Section 3583(e)(3) formerly required the aggregation of any prison sentences imposed for revocations of supervised release linked to a crime committed before April 30, 2003.”). By contrast, § 3583(e)(3) was revised in 2003 as part of the PROTECT Act to allow for a full sixty months’ imprisonment on each revocation. Id. (interpreting the 2003 amendments to § 3583(e)(3)). Accordingly, Hergott argues that, in order to" } ]

[ { "docid": "13765322", "title": "", "text": "release. 137 Cong. Rec. S7772 (daily ed. June 13,1991) (emphasis added). C. The 2003 Amendment, however, significantly altered the text of § 3583(e)(3). Indeed, it is clear that Congress intended to ensure that a district court is no longer required to reduce the maximum term of imprisonment to be imposed upon revocation by the aggregate length of prior revocation imprisonment terms. In the 2003 Amendment, Congress added the phrase “on any such revocation” to § 3583(e)(3). Pub.L. 108-21, § 101, 117 Stat. 650, 651. Although the addition of the phrase “on any such revocation” was the only change to § 3583(e)(3), the impact of this revision is substantial. The amended language of § 3583(e)(3) now explicitly states that the statutory maximum term of imprisonment (in Knight’s case twenty-four months) applies “on any such revocation.” Accordingly, under the amended version of § 3583(e)(3) it is clear that defendants are not to be credited for prior terms of imprisonment imposed upon revocation of their supervised release. Each of our sister circuits to address this issue has come to the same conclusion. See Tapia-Escalera, 356 F.3d at 188 (“Congress has altered the statute to adopt the government’s position” that the statutory cap applies to each revocation); United States v. Lewis, 519 F.3d 822, 824 (8th Cir.2008) (stating that the plain language of 18 U.S.C. § 3583(e)(3) permitted imposition of two year term of imprisonment for a class C felony “without the need to consider or aggregate the prison term for [the] first revocation.”); United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (“Congress did eventually amend § 3583(e)(3) so that the statutory caps now explicitly apply to each revocation of supervised release.”). Accordingly, we hold that the district court did not err in imposing a twenty-four month term of imprisonment upon revocation of Knight’s supervised release. III. The second issue we must determine is whether under 18 U.S.C. § 3583(h), as amended by Congress in 2003, the maximum term of supervised release that can be imposed on a defendant following multiple revocations of his supervised release must be reduced by the" }, { "docid": "22780723", "title": "", "text": "agreed with our position on this issue at that time, but two circuits held that § 3583(e)(3) empowered district courts to reimpose a further term of supervised release after revocation. The Supreme Court settled the circuit split in Johnson v. United States, which was issued in 2000, well before Martinez’s initial supervised release term was revoked. In Johnson, the Supreme Court sided with the minority approach and held that § 3583(e)(3) permitted district courts to impose a term of supervised release after revoking an initial term of supervised release. Martinez argues that applying Johnson retroactively to his 1993 conviction violates the Due Process Clause because he had no notice or fair warning that he could be subjected to reimposition of supervised release following revocation. The Government argues that the retroactive application of Johnson does not violate the Due Process Clause because the Supreme Court’s judicial interpretation of the statute was neither unexpected nor indefensible. In a recent unpublished decision, United States v. Seals, this court held that Johnson was properly applied retroactively to the defendant’s original conviction, which occurred in 1992. The court stated that “[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.” Because a circuit-split existed prior to Johnson and at the time of the defendant’s original conviction and sentencing, the court concluded that Johnson’s construction of § 3583(e)(3) was reasonably foreseeable and provided the defendant with a fair warning. Thus, it was not unconstitutional to apply Johnson retroactively. Although Seals is unpublished, and thus not binding, Seals is authoritative and persuasive. Therefore, applying Johnson retroactively to Martinez’s 1993 conviction does not violate the Due Process Clause, and the district court did not plainly err in reimposing supervised release after the first revocation. Accordingly, Martinez’s sentence is affirmed. AFFIRMED; MOTION DISMISSED AS MOOT. . See, e.g., United States v. Golding, 739 F.2d 183, 184 (5th Cir.1984). . Ketchum v. Gulf Oil Corp., 798 F.2d 159, 162 (5th Cir.1986). . See Eberhart v. United" }, { "docid": "23112822", "title": "", "text": "decision in this case. The Government offers no other cases to support its position. We are persuaded by the well-reasoned decisions of our sister circuits. In line with these decisions, we hold that under § 3853(h) “the maximum allowable supervised release following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation.” Mazarky, 499 F.3d at 1250. The district court erred in failing to reduce Vera’s maximum supervised release term by the six-month term of imprisonment that Vera received after his first revocation. Under § 3853(h), the maximum term of supervised release the district court could impose was 19 months. The district court exceeded the statutory maximum in sentencing Vera to a supervised release term of 25 months. Therefore, we VACATE Vera’s sentence and REMAND for resen-tencing consistent with this opinion. . The first sentence of the pre-2003 version of § 3583(h) provided: \"When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment that is less than the maximum term of imprisonment authorized under subsection (e)(3), the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment.” (emphasis added). Since the 2003 amendment, § 3583(h) has read: \"When a term of supervised release is revoked and the defendant is required to serve a term of imprisonment, the court may include a requirement that the defendant be placed on a term of supervised release after imprisonment. . The Government makes much of the fact that the PROTECT Act also amended § 3583(e)(3), which articulates the maximum term of imprisonment that may be imposed upon revocation of supervised release. Interpreting the pre-2003 version of subsection (e)(3), courts have held that in multiple revocation cases, the maximum term of imprisonment that may be imposed upon revocation is determined on a cumulative basis and not separately each time supervised release is revoked. See, e.g., United States v. Jackson, 329 F.3d 406, 407-08 (5th Cir.2003) (collecting cases). The aggregation principle for calculating the maximum term of imprisonment upon" }, { "docid": "13765326", "title": "", "text": "341 (4th Cir.2002); United States v. Merced, 263 F.3d 34, 37-38 (2d Cir.2001); United States v. Brings Plenty, 188 F.3d 1051, 1054 (8th Cir.1999); United States v. Beals, 87 F.3d 854, 857-58 (7th Cir.1996), overruled on other grounds by United States v. Withers, 128 F.3d 1167, 1172 (7th Cir.1997). We see nothing in the amended version of the statute to suggest that the pre-amendment rule no longer applies. Although the 2003 Amendment clearly altered the text of § 3583(e)(3), which governs the maximum term of imprisonment, the 2003 Amendment did not significantly alter the relevant portions of § 3583(h), which governs the maximum term of supervised release. Pub.L. 108-21, § 101(2). In particular, the 2003 Amendment did not alter the second sentence of § 3583(h), which addresses the “length” of a term of supervised release and requires the district court to subtract “any term of imprisonment that was imposed upon revocation of supervised release.” C. To date, only the Fifth Circuit has addressed the amended version of § 3583(h). In United States v. Vera, 542 F.3d 457 (5th Cir.2008), the Fifth Circuit addressed whether the plain text of § 3583(h) requires the district court to “subtract from the originally authorized supervised release term any term of imprisonment that was imposed upon revocation of supervised release.” Id. at 459-60 (internal quotation marks omitted). The Fifth Circuit held that “under § 3583(h) ‘the maximum allowable supervised release following multiple revocations must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation.’ ” Id. at 462 (quoting Mazarky, 499 F.3d at 1250). The Fifth Circuit based its analysis primarily on the phrase “less any term of imprisonment that was imposed upon revocation of supervised release.” The Fifth Circuit noted that “[w]hen the word ‘any’ is properly read in its § 3583(h) statutory context, Webster’s Third New International Dictionary provides that the word ‘any’ means ‘all.’ ” Vera, 542 at 460 (internal quotations and citations omitted) (quoting Maxwell, 285 F.3d at 341). Because the phrase “less any term of imprisonment” was not-altered by Congress in the 2003" }, { "docid": "22692674", "title": "", "text": "power not readily apparent from the text of .§ 3583(e)(3) (set out infra, at 704). Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson’s position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F. 3d 437 (CA6 1993). It nonetheless affirmed the District Court, judgt. order reported at 181 F. 3d 105 (1999), reasoning that the application of § 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson’s violation of the conditions of supervised release, which occurred after the 1994 amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United States v. Abbington, 144 F. 3d 1003, 1005 (CA6), cert. denied, 525 U. S. 933 (1998)). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of § 3583(h) was retroactive and at odds with the Ex Post Facto Clause. We granted certiorari to resolve the conflicts, 528 U. S. 950 (1999), and now affirm. II The heart of the Ex Post Facto Clause, U. S. Const., Art. I, § 9, bars application of a law “that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed . . . .” Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of Corrections v. Morales, 514 U. S. 499, 506-507, n." }, { "docid": "22432645", "title": "", "text": "interpretation of § 3582(a) that we rejected in Manzella, it is not persuasive law in this circuit. . The District Court prefaced the show cause hearing by stating, \"Under 18 United States Code, Section 3583(e)(3), a Court may revoke the term of supervised release if it be found by a preponderance of the evidence that the defendant violated a condition of his supervised release. And, of course, here he has admitted these violations so the preponderance standard is satisfied.” (Sealed App. 45.) . The Second Circuit, in an unpublished decision, subsequently reached a different outcome without explanation or citation to Anderson. See United States v. Yehuda, 238 Fed.Appx. 712, 713 (2d Cir.2007) (qualifying defendant for drug treatment program \"is not a permissible basis for increasing ... a term of imprisonment upon revocation of supervised release” (citing § 3582(a), § 994(k), and Manzella, 475 F.3d at 161)). . See also United States v. Hergott, 562 F.3d 968 (8th Cir.2009); United States v. Pitre, 504 F.3d 657 (7th Cir.2007); United States v. Crudup, 461 F.3d 433 (4th Cir.2006). . We are not persuaded in this regard by Doe’s argument that the Supreme Court’s admonition in Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), that we must \"attribute postrevocation penalties to the original conviction,” requires that the substantive considerations permitted in post-conviction sentencing must similarly act as limitations on post-revocation sentencing. In Johnson, the Supreme Court considered whether the amendment of § 3583(h), permitting courts to require additional supervised release after the completion of post-revocation incarceration, could apply retroactively without violating the ex post facto clause. Thus in noting that \"postrevocation penalties relate to the original offense,” 529 U.S. at 700, 120 S.Ct. 1795, the Court was observing that Johnson's post-revocation sentence cannot exceed the maximum penalty in place at the time of his underlying offense. The supervised release statute already provides for protection against the outcome forbidden by Johnson by restricting post-revocation incarceration to a term \"not to exceed the maximum term of imprisonment authorized [by statute for the original offense].” 18 U.S.C. § 3583(g)(4)." }, { "docid": "12752565", "title": "", "text": "if [the underlying] offense is a class ... D felony.” 18 U.S.C. § 3583(e)(3). In addition, the court may impose a postrevocation term of supervised release that does “not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of. supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” Id. § 3583(h). With this framework in mind, we turn to Zoran’s specific arguments. First, Zoran argues that, because the district court sentenced him to a total of two years’ imprisonment following the second revocation, § 3583(h) barred the court from imposing any additional term of supervised release. To support this argument, he emphasizes that, “[u]nder § 3583(h), if the court revokes supervised release and sentences the defendant to the maximum authorized prison term [under § 3583(e)(3) ], it may not impose an additional term of supervised release.” United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999) (per curiam) (applying pre-2003 version of § 3583(h)). Zoran’s argument on this point is easily dismissed because he relies on an outdated version of § 3583(h) and, thus, obsolete precedent. Effective April 30, 2003, Congress amended § 3583(h) and “removed the pre-2003 qualification that a new term of supervised release could be imposed only if the post-revocation prison sentence imposed was less than the maximum term of imprisonment authorized under § 3583(e)(3).” United States v. Vera, 542 F.3d 457, 461 (5th Cir.2008). Because the amended version of § 3583(h) applies to the term of supervised release imposed in this case, Zoran’s argument on this point is without merit. Zoran’s next two arguments are based on the district court’s interpretation and application of the second sentence in § 3583(h), which provides that a term of supervised release imposed following revocation shall not exceed (1) “the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release”; (2) “less any term of imprisonment that was imposed upon revocation of supervised release.” 18 U.S.C. § 3583(h). Under § 3583(b)(2), the maximum original term" }, { "docid": "3068589", "title": "", "text": "phrase “on any such revocation” to the two year maximum revocation sentence provided for class C felonies. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, 117 Stat. 650. In a thorough discussion of the issue, the district court concluded that this amendment abolished the requirement that revocation prison terms be aggregated for purposes of § 3583(e)(3), and that the law “now dictates that the maximum term of imprisonment that can be imposed for ‘any such revocation’ is the amount specified in [ (e)(3) for each class of felony], without reference to imprisonment imposed for other revocations.” United States v. Lewis, 504 F.Supp.2d 708, 712 (W.D.Mo.2007). The court also quoted commentary from other circuits which have reached the same conclusion. See Williams, 425 F.3d at 989 (“statutory caps [post PROTECT Act] explicitly apply to each revocation of super vised release”); Tapia-Escalera, 356 F.3d at 185-86, 188 (PROTECT Act amendments support position that statutory cap “applies afresh” to each revocation sentence). At oral argument Lewis referred for the first, time to the heading of § 101 of the PROTECT Act, which is entitled “Supervised Release Term for Sex Offenders.” That section includes the amendment to § 3583(e)(3), and Lewis now argues that the heading shows that Congress intended to limit its provisions to sex offenders. This argument was not raised in the district court nor in his appeal brief and is therefore waived. See Express Scripts, Inc. v. Aegon Direct Mktg. Servs., Inc., 516 F.3d 695, 2008 WL 375200 *6 (8th Cir.2008). Even if the issue were properly before us, however, section titles of an act cannot alter the statute’s plain meaning and will be looked to only when the statutory language has an ambiguous word or phrase. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998); see also Minn. Transp. Regulation Bd. v. United States, 966 F.2d 335, 339 (8th Cir.1992). Section 3583(e)(3) was in effect in October 2003 when Lewis committed the class C felony which produced his first period of" }, { "docid": "22692679", "title": "", "text": "to be applied retroactively. See, e. g., Lynce v. Mathis, 519 U. S. 433, 439 (1997); Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See id., at 270. The Government offers nothing indicating congressional intent to apply § 3583(h) retroactively. The legislative decision to alter the rule of law established by the majority interpretation of § 3583(e)(3) (no authority for supervised release after revocation and reimprisonment) does not, by itself, tell us when or how that legislative decision was. intended to take effect. See Rivers v. Roadway Express, Inc., 511 U. S. 298, 304-307 (1994). Neither is there any indication of retroactive purpose in the omission of an express effective date from the statute. The omission simply remits us to the general rule that when a statute has no effective date, “absent a clear direction by Congress to the contrary, [it] takes effect on the date of its enactment.” Gozlon-Peretz, 498 U. S., at 404. Nor, finally, has Congress given us anything expressly identifying the relevant conduct in a way that would point to retroactive intent. It may well be that Congress, like the Sixth Circuit, believed that § 3583(h) would naturally govern sentencing proceedings for violations of supervised release that took place after the statute’s enactment, simply because the violation was the occasion for imposing the sanctions. But Congress gave us no clear indication to this effect, and we have already rejected that theory; the relevant conduct is the initial offense. In sum, there being no contrary inrent, our longstanding presumption directs that § 3583(h) applies only to eases in which that initial offense occurred after the effective date of the amendment, September 13,1994. Given this conclusion, the case does not turn on whether Johnson is worse off under § 3583(h) than he previously was under § 3583(e)(3), as subsection (h)" }, { "docid": "3068587", "title": "", "text": "was again on supervised release, Lewis was arrested in February 2007 for aggravated flight from a police officer. The district court held another revocation hearing in August 2007 and found that Lewis had violated the terms of his supervised release. The district court again revoked his supervised release and sentenced him to 18 months in prison and 18 months of supervised release. On appeal Lewis argues that the 18 month prison sentence resulting from his revocation was illegal under 18 U.S.C. § 3583(e)(3). The legality of a revocation sentence is reviewed de novo. See United States v. Walker, 513 F.3d 891, 893 (8th Cir.2008). The parameters within which a district court may impose and revoke a period of supervised release and the sentencing options after revocation are set out in 18 U.S.C. § 3583. Subsection (e)(3) of that statute limits the amount of time a defendant may be sentenced to serve after supervised release has been revoked and states that a defendant “may not be required to serve on any such revocation ... more than 2 years in prison if [the original] offense is a class C or D felony ...” (emphasis added). Lewis argues that this 2 year maximum for a revocation sentence applies to the sum of his new revocation sentence and “all the prison time served under any prior revocation sentence^),” United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999). Since the prison sentence on his first revocation was 2 years, he argues that the 18 months imposed after his second revocation was illegal since the 2 year limit under § 3583(e)(3) was already reached. The district court recognized that § 3583(e)(3) formerly required the aggregation of any prison sentences imposed for revocations of supervised release linked to a crime committed before April 30, 2003. See, e.g., id.; United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005); United States v. Tapia-Escalera, 356 F.3d 181, 187 (1st Cir.2004) (citing cases from other circuits). This changed when the PROTECT Act went into effect on April 30, 2003, for that act amended § 3583(e)(3) to add the" }, { "docid": "23515987", "title": "", "text": "3583(e)(3) (emphasis added). However, the statute is silent regarding whether the term is to be calculated with or without credit for time served in prison for previous violations of supervised release. See id. While the statute’s language does not explicitly support Williams’s aggregation argument, it does not foreclose it either. Furthermore, Congress did eventually amend § 3583(e)(3) so that the statutory caps now explicitly apply to each revocation of supervised release. 18 U.S.C. § 3583(e)(3) (2005). In 2003, Congress added the phrase “on any such revocation” so that it now reads “a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than ... 2 years in prison if such offense is a Class C or D felony[.]” Id. The fact Congress needed to add such language indicates that prior to 2003 Congress either believed that the caps applied in the aggregate or that the statute was so ambiguous it needed clarification. While the statutory language of the applicable version of § 3583(e)(3) is too inconclusive to provide definitive guidance, there is explicit legislative history that supports Williams’s aggregation argument. The 1991 Senate Report makes clear that the statutory cap is to apply to the aggregate term of all imprisonments for supervised release violations. 137 Cong. Rec. S7769-72 (daily ed. June 13, 1991). In addition to the 1991 Senate Report, Williams’s aggregation argument is supported by the fact that the other six circuit courts of appeals to have considered this issue have taken the position that the statutory caps apply in the aggregate, not to each revocation. See United States v. Tapia-Escalera, 356 F.3d 181, 187 (1st Cir.2004) (citing decisions from the Second, Fifth, Seventh, Eighth, and Tenth Circuits) (persuasive authority). We agree with the reasoning of our sister circuits and hold that § 3583(e)(3)’s statutory máximums apply in the aggregate for the following reasons: (1) the statutory language does not forbid such an interpretation; (2) the explicit legislative history favors such a reading; (3) the government has conceded this issue in several cases, including this one; and (4) six other" }, { "docid": "16132985", "title": "", "text": "v. Knight, 580 F.3d 933, 937-38 (9th Cir.2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir.2008); United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005) (per curiam); United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir.2004). None of those courts, however, addressed the precise issue Hampton has presented: whether the phrase “term of supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) acts as a separate, aggregate cap on revocation imprisonment. . Hampton argues that this same principle of statutory construction requires us to read the phrase \"term of supervised release authorized by statute” in § 3583(e)(3) as an aggregate limit on revocation imprisonment because it lacks the words \"on any such revocation,” which create a per-revocation cap on revocation imprisonment in the same subsection. This argument is based on a misreading of § 3583(e)(3). Read properly, the phrase \"on any such revocation” language already modifies the phrase \"term of supervised release authorized by statute” — it provides the exception to the court's ability to sentence the defendant to the full term of supervised release authorized by § 3583(b). See 18 U.S.C. § 3583(e)(3). . Hampton also makes a related Rule 11 argument. Federal Rule of Criminal Procedure 11 requires the sentencing court to inform the defendant of “any maximum possible penalty, including imprisonment, fine, and a term of supervised release” prior to accepting a guilty plea. Fed. R.Crim. Proc. 11(b)(1)(H). Hampton argues that our reading of § 3583(e)(3) prevents the sentencing court from clearly expressing the maximum punishment a defendant can receive for a crime. We are not persuaded. First, Hampton does not challenge the district court's explanation of the maximum possible penalty during her own plea colloquy, nor can she, see Hinson, 429 F.3d at 116 & n. 8 (stating that a defendant \"may not use an appeal of the revocation of her supervised release to attack her original sentence directly or collaterally”), so we need not address the issue in her case. Second, assuming, without deciding, that the possibility of more than one revocation sentence should be disclosed" }, { "docid": "16132979", "title": "", "text": "1994 Congress amended § 3583(e)(3), and Hampton argues that the added language requires us to aggregate revocation imprisonment. After the 1994 amendment, § 3583(e)(3) authorized the district court to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision.” Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103- 322 § 110505(2)(B), 108 Stat. 1796, 2016-17 (1994) (amendment italicized). This amendment produced two results. First, it allowed the revoking court to impose a term of revocation imprisonment without being limited by the amount of supervised release the original sentencing court imposed. Johnson, 529 U.S. at 705, 120 S.Ct. 1795. Prior to this amendment, the revoking court could not impose a revocation sentence that exceeded the supervised release sentence imposed by the original sentencing court. Id.; see also United States v. Stewart, 7 F.3d 1350, 1352 & n. 1 (8th Cir.1993) (collecting cases). Second, sentencing courts began to interpret the felony class revocation limits at the end of § 3583(e)(3) as aggregate limits on revocation imprisonment. See Tapia-Escalera, 356 F.3d at 187 & nn. 6-7 (citing 137 Cong. Rec. S7772 (daily ed. June 13, 1991) and collecting cases). Congress amended § 3583(e)(3) once again in the 2003 PROTECT Act. The PROTECT Act added the phrase “on any such revocation” to the felony class revocation limits, so that a defendant “may not be required to serve on any such revocation more than” a certain number of years based on the felony class. Pub.L. No. 108-21 § 101(1), 117 Stat. at 651 (amendment italicized). As Hampton has conceded, this language now operates as a per-revocation limit on revocation imprisonment. See, e.g., Epstein, 620 F.3d at 80. To reach Hampton’s reading of the phrase “authorized by statute” at the beginning of § 3583(e)(3), however, we would have to go one step further. We would have to read the PROTECT Act as transforming the phrase “authorized by" }, { "docid": "22692673", "title": "", "text": "1995, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by § 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission. The District Court revoked Johnson’s supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on § 3583(h), a subsection added to the statute in 1994, see Violent Crime Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat. 2017. Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of .§ 3583(e)(3) (set out infra, at 704). Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson’s position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F. 3d 437 (CA6 1993). It nonetheless affirmed the District Court, judgt. order reported at 181 F. 3d 105 (1999), reasoning that the application of § 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson’s violation of the conditions of supervised release, which occurred after the 1994 amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United States" }, { "docid": "23112820", "title": "", "text": "Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. 108-21, § 101, 117 Stat. 650, 651. However, the amendment to § 3583(h) left untouched the relevant language outlining the formula for calculating the maximum term of supervised release upon revocation. Both before and after the PROTECT Act, a district court must calculate the maximum supervised release term based on the supervised release term authorized for the original offense “less any term of imprisonment that was imposed upon revocation of supervised release.” Thus, the precise language that the Fourth, Eighth, and Eleventh Circuits analyzed to conclude that the maximum supervised release term must be reduced by the aggregate length of any terms of imprisonment that have been imposed upon revocation has not changed. The 2003 amendment to § 3583(h) addressed a different issue. The amendment removed the pre-2003 qualification that a new term of supervised release could be imposed only if the post-revocation prison sentence imposed was less than the maximum term of imprisonment authorized under § 3583(e)(3). The amendment thus addressed when the district court could impose supervised release upon revocation, but did not alter the formula for calculating how much supervised release the district court could impose. The Government’s reliance on the 2003 amendment to § 3583(h) is unavailing. Next, the Government cites an unpublished decision from our circuit, United States v. Sifuentes, 204 Fed.Appx. 477 (5th Cir.2006), and alleges that we have already rejected the argument that Vera now raises. In Sifuentes, the defendant contended that “her 28-month term of supervised release and her eight-month prison sentence exceeds the statutory maximum because the total length of her supervised release, including 20 months previously served, will violate the statutory maximum term of 36 months of supervised release.” The issue in Sifuentes was whether the 20 months that the defendant had previously served on supervised release for her original conviction should be credited toward the maximum term of supervised release that could be imposed on revocation. That case did not concern the aggregation of multiple post-revocation terms of imprisonment, as does this case. Therefore, Si-fuentes does not inform our" }, { "docid": "8175550", "title": "", "text": "by observing the interplay between that provision and the specifically prescribed prison-term máximums of subsection (e)(3), we are able to identify the maximum authorized post-revocation prison term that the district court could have imposed on Mr. Lamirand — that is, two years. See id. § 3583(e)(3) (noting that “if such offense [that led to the term of supervised release]” is “a class C or D felony” then a defendant “may not be required to serve ... more than 2 years in prison”). In Mr. Lamirand’s case, the district court imposed a term of imprisonment of twelve months and one day, which is less than the authorized term. Consequently, the district court did not err. CONCLUSION For the foregoing reasons, Mr. Lamirand’s sentence is AFFIRMED. . Section 3583(g) requires \"[m]andatory revocation for possession of [a] controlled substance.” . We recently addressed the aggregation argument under § 3583(e)(3) — specifically, the argument that the statute entitles a defendant who has had multiple revocations to “credit for all ... prior prison terms ... served for violating supervised release orders.” See United States v. Hernandez, 655 F.3d 1193, 1195 (10th Cir.2011). Considering an April 2003 amendment to the supervised release statute, wherein Congress added the phrase \"on any such revocation” to the part of § 3583(e)(3) dealing with limitations on the total amount of imprisonment that may be imposed upon revocation of supervised release, see id. at 1197 (citing amendments included in the PROTECT Act, Pub.L. No. 108-21, § 101, 117 Stat. 650, 650 (2003) (codified as amended at 18 U.S.C. § 3583(e)(3) (2006))), we concluded that the statute, as amended, \"bring[s] to an end the aggregation [argument]” advanced by the defendant, see id. at 1196. We note, however, that the district court's adoption of the government’s \"aggregation” argument was consistent with the state of the law then applicable. See United States v. Swenson, 289 F.3d 676, 677 (10th Cir.2002) (applying the version of § 3583(e)(3) in existence before the PROTECT Act amendments, and agreeing with other circuits that, under this version, \"all revocation prison sentences relating to the same underlying class C or" }, { "docid": "3068588", "title": "", "text": "2 years in prison if [the original] offense is a class C or D felony ...” (emphasis added). Lewis argues that this 2 year maximum for a revocation sentence applies to the sum of his new revocation sentence and “all the prison time served under any prior revocation sentence^),” United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th Cir.1999). Since the prison sentence on his first revocation was 2 years, he argues that the 18 months imposed after his second revocation was illegal since the 2 year limit under § 3583(e)(3) was already reached. The district court recognized that § 3583(e)(3) formerly required the aggregation of any prison sentences imposed for revocations of supervised release linked to a crime committed before April 30, 2003. See, e.g., id.; United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005); United States v. Tapia-Escalera, 356 F.3d 181, 187 (1st Cir.2004) (citing cases from other circuits). This changed when the PROTECT Act went into effect on April 30, 2003, for that act amended § 3583(e)(3) to add the phrase “on any such revocation” to the two year maximum revocation sentence provided for class C felonies. Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, 117 Stat. 650. In a thorough discussion of the issue, the district court concluded that this amendment abolished the requirement that revocation prison terms be aggregated for purposes of § 3583(e)(3), and that the law “now dictates that the maximum term of imprisonment that can be imposed for ‘any such revocation’ is the amount specified in [ (e)(3) for each class of felony], without reference to imprisonment imposed for other revocations.” United States v. Lewis, 504 F.Supp.2d 708, 712 (W.D.Mo.2007). The court also quoted commentary from other circuits which have reached the same conclusion. See Williams, 425 F.3d at 989 (“statutory caps [post PROTECT Act] explicitly apply to each revocation of super vised release”); Tapia-Escalera, 356 F.3d at 185-86, 188 (PROTECT Act amendments support position that statutory cap “applies afresh” to each revocation sentence). At oral argument Lewis referred for" }, { "docid": "16132984", "title": "", "text": "3583(e)(3) authorizes the district court to impose up to two years’ revocation imprisonment for violating the conditions of supervised release for such a felony. IV. CONCLUSION For the foregoing reasons, the judgment of the district court revoking Hampton’s supervised release and sentencing Hampton to 24 months’ imprisonment is AFFIRMED. . We addressed whether the language that the PROTECT Act added to § 3583(e)(3) imposed only a per-revocation cap on imprisonment in United States v. Shabazz, which is a case we have decided today. No. 10-10553, 2011 WL 31794, 633 F.3d 342 (5th Cir.2011). In Shabazz, we held that the phrase “may not be required to serve on any such revocation” at the end of § 3583(e)(3) acts as a per-revocation cap on imprisonment. Id., at 346-47, 2011 WL 31794, *3. We note that several other circuits have also interpreted the phrase \"may not be required to serve on any such revocation” in § 3583(e)(3) as a per-revocation cap on imprisonment. See United States v. Epstein, 620 F.3d 76, 80 (2d Cir.2010) (per curiam); United States v. Knight, 580 F.3d 933, 937-38 (9th Cir.2009); United States v. Lewis, 519 F.3d 822, 825 (8th Cir.2008); United States v. Williams, 425 F.3d 987, 989 (11th Cir.2005) (per curiam); United States v. Tapia-Escalera, 356 F.3d 181, 188 (1st Cir.2004). None of those courts, however, addressed the precise issue Hampton has presented: whether the phrase “term of supervised release authorized by statute for the offense” at the beginning of § 3583(e)(3) acts as a separate, aggregate cap on revocation imprisonment. . Hampton argues that this same principle of statutory construction requires us to read the phrase \"term of supervised release authorized by statute” in § 3583(e)(3) as an aggregate limit on revocation imprisonment because it lacks the words \"on any such revocation,” which create a per-revocation cap on revocation imprisonment in the same subsection. This argument is based on a misreading of § 3583(e)(3). Read properly, the phrase \"on any such revocation” language already modifies the phrase \"term of supervised release authorized by statute” — it provides the exception to the court's ability to sentence" }, { "docid": "15133395", "title": "", "text": "and disregard the legislative history. Although this is a very close call, we decline to do so. As already noted, the statute’s language does not strictly forbid the interpolated limitation sought by Tapia; this result is endorsed by unusually explicit legislative history; it has been several times conceded by the government; and five circuits have now followed the government’s original concessions. To the extent that we are left with any uncertainty after these considerations, the rule of lenity applies to tip the balance in the defendant’s favor. See, e.g., United States v. Luna-Diaz, 222 F.3d 1, 3 n. 2 (1st Cir.2000). The outcome does not threaten much harm. A three-year cap even in the aggregate would normally suffice to punish even a succession of petty supervised release violations like failing to report. Where the violation is more serious (such as drugs), it is independently a crime and can be independently prosecuted in a criminal case. And, if a new Congress disliked the result spelled out in the 1991 legislative history, it could easily amend subsection (e)(3). It turns out, although neither side mentioned the point, that Congress has altered the statute to adopt the government’s position for the future. The 2003 PROTECT Act adds to subsection (e)(3) the phrase “on any such revocation” so that the statute now reads “a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years if....” PROTECT Act, Pub.L. No. 108-21, tit. I, § 101(1), 117 Stat. 650, 651 (2003). The intent of the 2003 Congress cannot alter the law as enacted in 1994, but reading the 1994 statute in Tapia’s favor has only limited consequences. The 2003 amendment does not apply in this case, Tapia having committed the original offense (as well as the new violations) before the latest amendment. Cf. Johnson v. United States, 529 U.S. 694, 701-02, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Nothing in the new statute as it concerns § 3583(e)(3) suggests an effort to apply this amendment retroactively and, of course, the government has not relied" }, { "docid": "13765323", "title": "", "text": "to the same conclusion. See Tapia-Escalera, 356 F.3d at 188 (“Congress has altered the statute to adopt the government’s position” that the statutory cap applies to each revocation); United States v. Lewis, 519 F.3d 822, 824 (8th Cir.2008) (stating that the plain language of 18 U.S.C. § 3583(e)(3) permitted imposition of two year term of imprisonment for a class C felony “without the need to consider or aggregate the prison term for [the] first revocation.”); United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005) (“Congress did eventually amend § 3583(e)(3) so that the statutory caps now explicitly apply to each revocation of supervised release.”). Accordingly, we hold that the district court did not err in imposing a twenty-four month term of imprisonment upon revocation of Knight’s supervised release. III. The second issue we must determine is whether under 18 U.S.C. § 3583(h), as amended by Congress in 2003, the maximum term of supervised release that can be imposed on a defendant following multiple revocations of his supervised release must be reduced by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release. Knight argues that the statutory maximum term of supervised release (thirty-six months) must be reduced by the aggregate length of the terms of imprisonment imposed upon the First Revocation (nine months), the Second Revocation (nine months) and the Third Revocation (twenty-four months) of his supervised release. Accordingly, Knight argues that the district court was precluded from imposing an additional term of supervised release upon the Third Revocation because the aggregate length of revocation imprisonment (forty-two months) exceeded the statutory maximum amount of supervised release (thirty-six months). We agree, and we vacate Knight’s sentence and remand for resentencing. A. Under 18 U.S.C. § 3583(h), the district court may impose a term of supervised release after imprisonment for violations of conditions of supervised release. Section 3583(h) specifically limits, however, the length of the term of supervised release the district court may impose. Section 3583(h), as amended in 2003, states: When a term of supervised release is revoked and the defendant is required" } ]

[ { "docid": "22888402", "title": "", "text": "the tariff (see note 14, supra) expressly affords the opportunity for the shipper to secure an increased valuation by the payment of precisely defined additional freight, on what basis does Shipper contend that the $500 per package limitation is inapplicable? Basically, Shipper relies on the “in no case” terminology in clause 18 of the B/L (see note 8, supra). Added to that is the more recent decision by the Ninth Circuit in Pan Am. World Airways v. California Stevedore & Ballast Co., 559 F.2d 1173, 1978 A.M.C. 1834 (9th Cir. 1977), involving a Barber Line bill of lading, clause 18 of which was identical with the clause 18 (see note 8, supra) before us. The carrier there, admitting that the bill of lading contained no space for an excess valuation declaration, argued primarily that there was no evidence that the shipper had ever attempted to declare a higher valuation, and therefore, under the Clause Paramount (see note 9, supra), § 1304(5) would apply by its own terms. Agreeing with the lower court that Tessler Bros. (BC) Ltd. v. Italpacific Line, 494 F.2d 438, 1974 A.M.C. 937 (9th Cir. 1974), was controlling, the Court of Appeals quoted approvingly from the District Court’s decision that, referring to Tessler, held: That decision held that the language of COGSA § 4(5) regarding declaration of a higher value for goods and the language in the bill of lading to the same effect constituted prima facie evidence of an opportunity to avoid the limitation, and that the burden to prove otherwise was on the shipper. In the instant case, however, the limitation in Clause 18, which does not provide any opportunity for the shipper to declare higher value, ... is so inconsistent with 46 USC § 1304(5) as to: (1) render the bill of lading provision null and void; (2) distinguish the instant action from Tessler Bros.; and (3) place on defendant the burden of proving that an opportunity did in fact exist for the shipper to avoid the limitation. 559 F.2d at 1176 (quoting unpublished District Court opinion). The trial court then reached the climax" } ]

[ { "docid": "15193409", "title": "", "text": "Seiki’s favor. This argument also fails. Although it is true that a bill of lading is a contract of adhesion, which is “strictly construed against the carrier,” C-ART, Ltd. v. Hong Kong Islands Line America, S.A., 940 F.2d 530, 532 (9th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1762, 118 L.Ed.2d 425 (1992), and that “any ambiguity in the bill of lading must be construed in favor of the shipper and against the carrier,” Institute of London Underwriters v. Sea-Land Serv., Inc. (“London Underwriters”), 881 F.2d 761, 767 (9th Cir.1989), we are not persuaded that such an ambiguity exists here. The only ambiguity in the bill of lading arises from Mori Seiki’s strained reading of its provisions. Accordingly, the favorable construction that Mori Seiki seeks is not available. See id. (declining to adopt shipper’s strained interpretation of passage where language is unambiguous). We conclude, therefore, that the district court properly granted summary judgment in favor of appellees on the issue of whether the bill of lading extended COGSA’s $500 liability limitation to the period during which the lathe was damaged. II. FAIR OPPORTUNITY TO OPT FOR A HIGHER LIABILITY LIMIT Mori Seiki argues that the district court erred by concluding on summary judgment that COGSA’s $500 package liability limit should not apply to this case because the shipper, Mori Seiki Japan, Inc., was not afforded a “fair opportunity” to declare a higher value for the cargo. We disagree. Under Ninth Circuit law, a carrier may take advantage of COGSA’s $500 liability limit only if it gives the shipper a “fair opportunity” to opt for a higher liability by paying a correspondingly higher freight rate. Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th Cir.1989); Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806, 809 (9th Cir.1982); Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). As we have explained in the past, “[t]he fair opportunity requirement is meant to give the shipper notice of the legal conse quences of failing to opt for an ad valorem freight rate.” Carman Tool, 871 F.2d" }, { "docid": "19362046", "title": "", "text": "given force where COGSA is incorporated into a contract for foreign carriage to which it would not apply ex proprio vigore. 2. Opportunity to Declare a Higher Value Even given that the incorporation of COGSA applied to the shipment of the yacht, the Carrier and the Stevedore must also demonstrate that the shipper was given a fair opportunity to opt out of the bill of lading’s limitation of liability. In this circuit, a carrier can limit its liability for cargo damage to $500 per package or customary freight unit pursuant to the bill of lading and section 4(5) of COG-SA, 46 U.S.C.App. § 1304(5), if the shipper is given a fair opportunity to opt out of that limitation by declaring a higher value, but does not do so. Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th Cir.1989); Tessler Bros. (B.C.) Ltd. v. Ital-pacific Line, 494 F.2d 438, 443 (9th Cir.1974). Moreover, if the bill of lading contains an express recitation of the $500 limitation (rather than a mere incorporation of COGSA without more), and of the opportunity to avoid that limitation by declaring a higher value and paying additional freight, the bill of lading will constitute prima facie evidence that the shipper was given the requisite fair opportunity. Nemeth v. General S.S. Corp., 694 F.2d 609, 611 (9th Cir.1982). The bill of lading in this case clearly meets these requirements. Clause 23, on the face of the bill, provides a space to declare a higher value: (23) Declared Value $_If shipper enters a value, carriers “package” limitations [sic] of liability does not apply and the ad valorem rate will be charged. Paragraph 17 of the bill of lading also explains that the shipper may declare a higher value, in addition to setting forth explicitly the $500 limitation: 17. VALUATION. In the event of loss, damage or delay to or in connection with goods exceeding an actual value the equivalent of $500 ... per package, or in case of goods not shipped in packages, per shipping unit, the value of the goods shall be deemed to" }, { "docid": "6319935", "title": "", "text": "on the carrier. . COGSA applies to this contract ex proprio vigore with respect to the shipper and carrier because it is a contract for carriage between a foreign port and a port of the United States. See 46 U.S.C. §§ 1300, 1312. It also applies ex contractu because the terms of the bill of lading make the transaction subject to COGSA. See 46 U.S.C. § 1312. The bill of lading also contains a “Himalaya” clause, which extends COGSA’s provisions to the stevedore APL on the same terms and availability as the carrier. See Tessier Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 445-46 (9th Cir. 1974). . This rule reflects both the American courts’ historic reluctance to enforce carrier damage limitation provisions, see, e.g., The Kensington, 183 U.S. 263, 22 S.Ct. 102, 46 L.Ed. 190 (1902), and the judicial recognition that Congress enacted COGSA and the Harter Act to counteract the persistent efforts of carriers to insert all embracing exceptions to liability in bills of lading, see Tessler Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 444 (9th Cir. 1974). . The Paramount Clause provided: 1. (a) As far as this bill of lading covers the carriage of goods by water, this bill of lading shall have effect subject to the Carriage of Goods by Sea Act of the United States, 1936, (COGSA), (or any other enactment of Hague Rules where applicable) to the extent, but only to the extent, required by such Act, and to that extent is deemed to be incorporated herein. During any time when COGSA is not applicable by its own terms and the carrier has any responsibility by law or otherwise with respect to cargo, such responsibility shall be governed by, and limited to, that prescribed by Subsections ... (5) and (6) of Section 4, ... which subsections .. . are incorporated herein by reference and made a part hereof. (Emphasis added). . The Paramount Clause in Pan Am is substantially similar to the Paramount Clause considered here. The Paramount Clause in Pan Am provided: 2. PARAMOUNT CLAUSE. This bill of lading" }, { "docid": "18937855", "title": "", "text": "held that, even if COGSA applied, a carrier may not invoke COGSA’s $500 liability limit if it fails to exercise due diligence to provide a seaworthy vessel. See id. The district court found actual damages totaling over $13 million. See id. at 573. However, the court ruled that proper treatment of the salvaged turbine parts would have substantially mitigated Sabah’s loss, and it reduced the amount of damages accordingly. See id. The district court also rejected Sabah’s argument that Sabah was entitled to additional damages stemming from a liquidated-damages clause in its contract with NAPOCOR. See id. at 574. Based on these findings and conclusions, the district court entered judgment against IMB, Intermarine, and L&C in the amount of $9,125,565.78. See id. at 575. The defendants timely appealed, and Sabah timely cross-appealed. Ill The defendants argue that the district court erred by denying them the $500-per-paekage-or-per-unit limit on liability afforded to carriers under COGSA. COGSA provides that a carrier shall not be hable, “for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package ..., or in the case of goods not shipped in packages, per customary freight unit ..., unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading.” 46 U.S.C. app. § 1304(5). To take advantage of COGSA’s limit on liability, however, the carrier must offer the shipper a “fair opportunity” to declare the true value of the shipment and to pay a correspondingly higher shipping rate. See Brown & Root v. M/V Peisander, 648 F.2d 415, 424 (5th Cir.1981); Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974); 2A Benedict on Admiralty § 166 at 16-24 to 16-25 (April 1999) (“Benediot”). Thus, under COGSA, the $500 liability limit applies unless (1) the shipper declares a higher value and pays a higher shipping rate, or (2) the carrier does not give the shipper a fair opportunity to declare a higher value. See Wuert-tembergische & Badische VersicherungsAktiengesellschaft v. M/V Stuttgart Express, 711" }, { "docid": "4102257", "title": "", "text": "COGSA Section 1(5): A Case Study in the Misinterpretation of the Carriage of Goods by Sea Act, 19 J. Mar. L. & Comm. 1, 6-18 (1988); cf. General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1028 (2d Cir.1987) (“Only by granting shippers a fair opportunity to choose between paying a greater or lesser charge to obtain corresponding more or less protection for its goods may a carrier limit its liability to an amount less than- the loss actually sustained.”) (quoting New York, New Haven & Hartford R. Co. v. Nothnagle, 346 U.S. 128, 135, 73 S.Ct. 986, 97 L.Ed. 1500 (1953)). Despite the absence of clear language in COGSA supporting such a requirement, a number of courts, beginning with the Ninth Circuit’s opinion in Tessler Brothers (B.C.) v. Italpacific Line, 494 F.2d 438 (9th Cir.1974), now apply the doctrine to COGSA as a “judicial encrustation” on section 4(5). Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 900 (9th Cir.1989). In order to meet the requirements of the doctrine in the Second Circuit, the carrier must make a prima facie showing that it provided the shipper with notice of the liability limitation and the means of avoiding that limitation. General Elec. Co., 817 F.2d at 1029 “Prima facie evidence of that opportunity is established when it can be gleaned from the language contained in the bill of lading. If the carrier succeeds in demonstrating fair opportunity, the burden of proof shifts to the shipper to demonstrate that a fair opportunity did not in fact exist.” Id. (citations omitted). Although the Second Circuit has not set a floor for what information must be included in the bill of lading to make this prima facie showing, it has found bills that incorporate COGSA or refer to the $500 limit and include a space for declaring excess value to be sufficient. See Nippon Fire & Marine Ins. Co., 167 F.3d at 101; General Elec. Co., 817 F.2d at 1029; Binladen BSB Landscaping v. M.V. “Nedlloyd Rotterdam”, 759 F.2d 1006, 1017 n. 12 (2d Cir.1985) (Mansfield, J.). In addressing the question" }, { "docid": "12714784", "title": "", "text": "is no evidence that Pan Ana, a sophisticated shipper acting through a sophisticated professional freight forwarding company, was ignorant of COGSA or of the terms of bill of lading. In addition, CS&B contends that Pan Am has advanced no reason why COGSA § 1304(5), a term of the contract, should not be given effect. CS&B cites Mamiye Bros. v. Barber Steamship Lines, Inc., 241 F.Supp. 99 (S.D.N.Y.1965), affirmed, 360 F.2d 774 (2 Cir. 1966), cert. den., 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), as authority embracing the aforementioned procedure where provisions of the bill of lading conflict with its “Paramount Clause.” The district court found Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438 (9 Cir. 1974) controlling on this issue. We are in agreement and adopt the district court’s language in its unpublished opinion (Civil No. 74-1566): The doctrine that a carrier may limit its liability only if a shipper is afforded a fair opportunity to declare a higher value for the cargo and pay a correspondingly higher charge has been recognized in this Circuit as recently as last year in Tessler Bros., supra, at 443. That decision held that the language of COGSA § 4(5) regarding declaration of a higher value for goods and the language in the bill of lading to the same effect constituted prima facie evidence of an opportunity to avoid the limitation, and that the burden to prove otherwise was on the shipper. In the instant case, however, the limitation in Clause 18, which does not provide any opportunity for the shipper to declare higher value, in the opinion of this Court is so inconsistent with 46 U.S.C. § 1304(5) as to: (1) render the bill of lading provision null and void; (2) distinguish the instant action from Tessler Bros.; and (3) place on defendant the burden of proving that an opportunity did in fact exist for the shipper to avoid the limitation. Defendant having failed to carry this burden, the Court finds and concludes that the benefit of the limitation is not available to defendant. The United States Supreme" }, { "docid": "1580385", "title": "", "text": "limiting liability to $500 per package under Section 4(5) of COGSA. This ruling assumes that Nemeth had a fair opportunity to choose a higher liability; otherwise, section 4(5)’s liability limitations would not apply. We believe that there is a material issue of fact as to whether Nemeth had a fair opportunity to so choose. The carrier bears the initial burden of proving “fair opportunity.” Komatsu, 674 F.2d at 809. Normally, the carrier can meet this initial burden by showing that the language of COGSA Section 4(5) is contained in the bill of lading. Id. Such an express recitation of section 4(5) is prima facie evidence that the shipper was given a fair opportunity to choose a higher liability. Tessler Brothers (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). The burden of disproving “fair opportunity” is then shifted to the shipper. Clause 7 of the bill of lading does recite the language of COGSA Section 4(5). This provision in the bill of lading is, however, accurately described by Nemeth as microscopic and blurry. The copy in the record before the district court and this court is illegible to the unaided eye. It cannot be deciphered without resort to a magnifying glass or a preexisting knowledge of section 4(5). A legible recitation of COGSA Section 4(5) in the bill of lading is evidence that the shipper had notice of a choice of liabilities and rates. See Tessler, 494 F.2d at 443. An illegible recitation of section 4(5), however, does not impart such notice, and thus is not prima facie evidence of “fair opportunity.” The inclusion of the language of section 4(5) in the bill of lading was, on this record, not sufficient to meet the appellees’ initial burden of proving “fair opportunity.” Even if the appellees had met their initial burden, Nemeth’s response was sufficient to create a genuine issue of material fact and overcome the summary judgment motion. Nemeth claims that he gave the appellees a detailed list of the contents of his shipment and notification of its value, which was substantially in excess of COG-SA’s $500-per-package limitation." }, { "docid": "22852626", "title": "", "text": "pp. 16-28 to 16-29 (Michael F. Sturley, contrib. ed. 1993) (hereinafter, 2A Benedict) (describing “strict” Ninth Circuit standard, citing cases), mandating that the carrier provide the shipper legible written notice of the COGSA “package/CFU” liability limitation in the bill of lading, employing language substantially similar to COGSA § 4(5). See, e.g., Nemeth v. General S.S. Corp., 694 F.2d 609, 611 (9th Cir.1982). Other courts, including the Second, Fourth, Fifth and Eleventh Circuits, simply require that the bill of lading include a “clause paramount” incorporating COGSA by reference. See, e.g., Insurance Co. of N. Am. v. M/V Ocean Lynx, 901 F.2d 934, 939 (11th Cir.1990), cert. denied, 498 U.S. 1025, 111 S.Ct. 675, 112 L.Ed.2d 667 (1991); General Elec. Co. v. MV Nedlloyd, 817 F.2d 1022, 1029 (2d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 710, 98 L.Ed.2d 661 (1988); Cincinnati Milacron, Ltd. v. M/V American Legend, 804 F.2d 837, 837 (4th Cir.1986) (en banc) (per curiam), rev’g 784 F.2d 1161 (4th Cir.1986); Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415, 424 (5th Cir.1981). The courts are in agreement that the carrier bears the burden of proving that it has afforded the shipper the requisite “fair opportunity” notice. See, e.g., General Elec., 817 F.2d at 1029; Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). Our review leads us to conclude that the bill of lading in this ease afforded “fair opportunity” notice sufficient to satisfy whatever essential requirements are imposed by these other courts. Constructive notice was afforded by the “clause paramount” legibly printed on the reverse side of the bill of lading: “This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act_” See Cincinnati Milacron, 804 F.2d at 837 (“clause paramount” provides constructive notice). A more particular notice was contained in the bill of lading “valuation clause”: 20. VALUATION. Carrier shall not be liable in any event for any loss, damage, misdelivery or delay with respect to the goods in an amount exceeding $500.00 lawful money of the United States per package, or" }, { "docid": "6319924", "title": "", "text": "$500 unless the nature and value of the shipped goods is declared by the shipper and inserted in the bill of lad ing. To guarantee that carriers respect the statutory option to declare a higher value and as a contract principle used in interpreting damage limitations authored by carriers, carriers are permitted to limit liability to an amount less than the actual loss only if the carrier gives the shipper “a fair opportunity to choose between a higher or lower liability by paying a correspondingly greater or lesser charge .. . . ” Tessler Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir. 1974) (quoting New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 135, 73 S.Ct. 986, 990, 97 L.Ed. 1500 (1953)). Consistent with the longstanding rule that the burden of proof is upon the carrier to demonstrate the validity of a contractual liability limitation, see New Jersey Steam Navigation Co. v. Merchant’s Bank, 47 U.S. (6 How.) 344, 382, 12 L.Ed. 465 (1847), the burden of proving “fair opportunity” is initially upon the carrier. Express recitation in a bill of lading of the language contained in COGSA § 4(5) is prima facie evidence that the carrier gave the shipper that opportunity and places the burden on the shipper to prove that such an opportunity did not exist in fact. Tessler, 494 F.2d at 443; Isbrandtsen Co. v. United States, 201 F.2d 281, 285 (2d Cir. 1953). States claims that it met its evidentiary burden by including in the bill of lading a “Paramount Clause”, which indicated that COGSA’s provisions governed the parties’ contractual relations. States reasons that Komatsu would have discovered the damage limitation contained in section 4(5) and the section’s statement that a shipper may raise the damage limitation by declaring a higher value if it had read COGSA’s provisions. As the Paramount. Clause incorporated all of COGSA’s provisions into the bill of lading by reference, States concludes that Komatsu should be charged with constructive notice of the option to declare a higher value. We disagree. In Pan American World" }, { "docid": "6319923", "title": "", "text": "alleging that APL damaged the tractor in excess of $16,500, sued States for breach of the contract of carriage and sued APL for negligence. Federal jurisdiction was based in admiralty. States and APL (collectively, “States”) claimed that liability, if any, was limited to $500 under section 4(5) of COG-SA, 46 U.S.C. § 1304(5) and under the terms of the bill of lading. On cross-motions for summary judgment, the district court entered partial summary judgment for Komatsu, holding States and APL liable for the damage to the tractor and denying States and APL the benefit of the COGSA § 4(5) damage limitation. Two issues are raised on appeal: (1) whether an ocean carrier is entitled to the damage limitation in COGSA § 4(5) if it incorporates by reference COGSA into its bill of lading; and (2) whether the filing of a carrier’s tariff with the Federal Maritime Commission constitutes constructive notice and fair opportunity to the shipper to avoid the package limitation. 1. The Bill of Lading Section 4(5) of COGSA limits a carrier’s liability to $500 unless the nature and value of the shipped goods is declared by the shipper and inserted in the bill of lad ing. To guarantee that carriers respect the statutory option to declare a higher value and as a contract principle used in interpreting damage limitations authored by carriers, carriers are permitted to limit liability to an amount less than the actual loss only if the carrier gives the shipper “a fair opportunity to choose between a higher or lower liability by paying a correspondingly greater or lesser charge .. . . ” Tessler Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir. 1974) (quoting New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 135, 73 S.Ct. 986, 990, 97 L.Ed. 1500 (1953)). Consistent with the longstanding rule that the burden of proof is upon the carrier to demonstrate the validity of a contractual liability limitation, see New Jersey Steam Navigation Co. v. Merchant’s Bank, 47 U.S. (6 How.) 344, 382, 12 L.Ed. 465 (1847), the burden of" }, { "docid": "6319934", "title": "", "text": "333, 334 (5th Cir. 1978). Remand on this issue is therefore inappropriate. As no prima facie evidence was presented to indicate that Komatsu had a “fair opportunity” to declare a higher value, the district court was correct in denying States and APL the benefit of COGSA’s damage liability limitation and in granting partial summary judgment for Komatsu. AFFIRMED. . COGSA § 4(5), 46 U.S.C. § 1304(5), provides in pertinent part: Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier. . COGSA applies to this contract ex proprio vigore with respect to the shipper and carrier because it is a contract for carriage between a foreign port and a port of the United States. See 46 U.S.C. §§ 1300, 1312. It also applies ex contractu because the terms of the bill of lading make the transaction subject to COGSA. See 46 U.S.C. § 1312. The bill of lading also contains a “Himalaya” clause, which extends COGSA’s provisions to the stevedore APL on the same terms and availability as the carrier. See Tessier Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 445-46 (9th Cir. 1974). . This rule reflects both the American courts’ historic reluctance to enforce carrier damage limitation provisions, see, e.g., The Kensington, 183 U.S. 263, 22 S.Ct. 102, 46 L.Ed. 190 (1902), and the judicial recognition that Congress enacted COGSA and the Harter Act to counteract the persistent efforts of carriers to insert all embracing exceptions to liability in bills of lading, see Tessler Brothers (B.C.), Ltd. v. Italpacific" }, { "docid": "6319937", "title": "", "text": "shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. Pan American World Airways, Inc. v. California Stevedore and Ballast Co., 559 F.2d 1173, 1175 n.4 (9th Cir. 1977) (emphasis added). . States also contends that COGSA § 13, 46 U.S.C. § 1312, requires carriers to employ incorporation by reference. The argument is meritless. Section 13 leaves a carrier free to quote the language of section 4(5) in full. See, e.g., Tessler Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir. 1974). States also complains that unless incorporation by reference of COGSA is recognized as prima facie evidence, carriers will be forced to expressly reprint the language of section 4(5) in full. States contends this will complicate and lengthen shipping forms. This may be true, but we are not empowered to disregard our circuit’s precedent for the sake of the carrier’s administrative convenience. . A different case might have been presented had the bill of lading here expressly alerted the shipper to a $500 package limitation, see Brown & Root, Inc. v. M/V Peisander, 648 F.2d 415 (5th Cir. 1981), or if the tariff by its own terms imposed a specific package limitation. We express no opinion as to the proper result under such facts. We also reserve the question whether 46 U.S.C. § 817 requires a carrier to include a damage liability limitation in its tariff. Cf. Port of Tacoma v. S. S. Duval, 364 F.2d 615, 617 (9th Cir. 1966) (filing of tariff gives constructive notice of only those terms that are required by law to be filed)." }, { "docid": "6319936", "title": "", "text": "Line, 494 F.2d 438, 444 (9th Cir. 1974). . The Paramount Clause provided: 1. (a) As far as this bill of lading covers the carriage of goods by water, this bill of lading shall have effect subject to the Carriage of Goods by Sea Act of the United States, 1936, (COGSA), (or any other enactment of Hague Rules where applicable) to the extent, but only to the extent, required by such Act, and to that extent is deemed to be incorporated herein. During any time when COGSA is not applicable by its own terms and the carrier has any responsibility by law or otherwise with respect to cargo, such responsibility shall be governed by, and limited to, that prescribed by Subsections ... (5) and (6) of Section 4, ... which subsections .. . are incorporated herein by reference and made a part hereof. (Emphasis added). . The Paramount Clause in Pan Am is substantially similar to the Paramount Clause considered here. The Paramount Clause in Pan Am provided: 2. PARAMOUNT CLAUSE. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. Pan American World Airways, Inc. v. California Stevedore and Ballast Co., 559 F.2d 1173, 1175 n.4 (9th Cir. 1977) (emphasis added). . States also contends that COGSA § 13, 46 U.S.C. § 1312, requires carriers to employ incorporation by reference. The argument is meritless. Section 13 leaves a carrier free to quote the language of section 4(5) in full. See, e.g., Tessler Brothers (B.C.), Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir. 1974). States also complains that unless incorporation by reference of COGSA is recognized as prima facie evidence, carriers will be forced to expressly reprint the language of section 4(5) in full. States contends this will complicate" }, { "docid": "12714783", "title": "", "text": "U.S.C., section 1304(5) reads: Amount of liability; valuation of cargo (5) Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive on the carrier. CS&B admits that the bill of lading in this case contains no space for an excess valuation declaration. However, CS&B argues that there is no evidence that Pan Am ever attempted to declare a higher valuation. The “Paramount Clause” of the bill of lading incorporated the provisions of COGSA into the contract. CS&B argues that there is no evidence that Pan Ana, a sophisticated shipper acting through a sophisticated professional freight forwarding company, was ignorant of COGSA or of the terms of bill of lading. In addition, CS&B contends that Pan Am has advanced no reason why COGSA § 1304(5), a term of the contract, should not be given effect. CS&B cites Mamiye Bros. v. Barber Steamship Lines, Inc., 241 F.Supp. 99 (S.D.N.Y.1965), affirmed, 360 F.2d 774 (2 Cir. 1966), cert. den., 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966), as authority embracing the aforementioned procedure where provisions of the bill of lading conflict with its “Paramount Clause.” The district court found Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438 (9 Cir. 1974) controlling on this issue. We are in agreement and adopt the district court’s language in its unpublished opinion (Civil No. 74-1566): The doctrine that a carrier may limit its liability only if a shipper is afforded a fair opportunity to declare a higher value for the cargo and pay a correspondingly higher charge has" }, { "docid": "5598110", "title": "", "text": "certain of COGSA’s provisions into the contract and thereby protect certain non-carriers as well. As we discuss below, Todd was a contractor engaged in the performance of work undertaken in the bills of lading, and hence the following of COGSA’s protections are purportedly extended to Todd contractually: The one-year period of limitations for instituting suit and a notice-of-damage requirement [see COGSA, § 3(6), 46 U.S.C. § 1303(6) ]; The immunity from liability for unseaworthiness of the vessel unless caused by want of due diligence [see COGSA, § 4(1), 46 U.S.C. § 1304 (D 1; The immunity from liability for negligent acts in the navigation or management of the ship [see COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a) ]; The immunity from liability for damage caused by fire, unless caused' by the actual fault or privity of the carrier [see COGSA, § 4(2) (b), 46 U. S.C. § 1304(2) (b) ]; The immunity from liability for damage arising from any cause without actual fault or privity [see COGSA, § 4(2)(q), 46 U.S.C. § 1304 (2) (q) ]; and The limited liability of $500 per package or freight unit unless the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading [see COGSA, § 4(5), 46 U.S.C. § 1304(5) ]. The exemptions, immunities and limitations which are pertinent to the instant case are the complete exemption from liability [see COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a)]; the $500 limitation on liability [see COGSA, § 4(5), 46 U.S.C. § 1304(5)]; and the one-year period of limitations for instituting suit [see COGSA, § 3(6), 46 U.S.C. § 1303(6)]. B. The $500 Limitation on Amount of Liability In Tessler Brothers (B.C.) Ltd. v. Italpacific Line and Matson Terminals, Inc. (9 Cir. 1974) 494 F.2d 438, this court squarely faced the issue of whether a “Himalaya” clause was valid which purported clearly and expressly to extend to a non-carrier the $500 limitation on liability which COGSA, § 4(5), 46 U.S.C. § 1304(5), provides for carriers. That clause was held valid, and" }, { "docid": "1580384", "title": "", "text": "unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading... . 46 U.S.C. § 1304(5). The district court found that there was no genuine issue as to any material fact relating to the limitation of liability and granted partial summary judgment limiting Nemeth’s recoverable damages to $500 per package, for a total of $1,000 plus interest and costs. Thereafter, appellees made an offer of judgment for that amount. The judgment was entered and Nemeth appeals. II Fair Opportunity to Choose Higher Liability It is the law of this circuit that a carrier may limit its liability under Section 4(5) of COGSA only if the shipper is given a “fair opportunity” to opt for a higher liability by paying a correspondingly greater charge. Komatsu, Ltd. v. States Steamship Co., 674 F.2d 806, 809 (9th Cir.1982); Pan American World Airways, Inc. v. California Stevedore and Ballast Co., 559 F.2d 1173, 1176 (9th Cir.1977). The district court granted the appellees’ motion for partial summary judgment limiting liability to $500 per package under Section 4(5) of COGSA. This ruling assumes that Nemeth had a fair opportunity to choose a higher liability; otherwise, section 4(5)’s liability limitations would not apply. We believe that there is a material issue of fact as to whether Nemeth had a fair opportunity to so choose. The carrier bears the initial burden of proving “fair opportunity.” Komatsu, 674 F.2d at 809. Normally, the carrier can meet this initial burden by showing that the language of COGSA Section 4(5) is contained in the bill of lading. Id. Such an express recitation of section 4(5) is prima facie evidence that the shipper was given a fair opportunity to choose a higher liability. Tessler Brothers (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). The burden of disproving “fair opportunity” is then shifted to the shipper. Clause 7 of the bill of lading does recite the language of COGSA Section 4(5). This provision in the bill of lading is, however, accurately described by Nemeth as microscopic and blurry." }, { "docid": "15193410", "title": "", "text": "which the lathe was damaged. II. FAIR OPPORTUNITY TO OPT FOR A HIGHER LIABILITY LIMIT Mori Seiki argues that the district court erred by concluding on summary judgment that COGSA’s $500 package liability limit should not apply to this case because the shipper, Mori Seiki Japan, Inc., was not afforded a “fair opportunity” to declare a higher value for the cargo. We disagree. Under Ninth Circuit law, a carrier may take advantage of COGSA’s $500 liability limit only if it gives the shipper a “fair opportunity” to opt for a higher liability by paying a correspondingly higher freight rate. Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th Cir.1989); Komatsu, Ltd. v. States S.S. Co., 674 F.2d 806, 809 (9th Cir.1982); Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). As we have explained in the past, “[t]he fair opportunity requirement is meant to give the shipper notice of the legal conse quences of failing to opt for an ad valorem freight rate.” Carman Tool, 871 F.2d at 899. In a dispute over “fair opportunity” such as this one, the carrier bears an initial burden of producing prima facie evidence which demonstrates that it provided such notice to the shipper. Carman Tool, 871 F.2d at 899. “Normally, the carrier can meet this initial burden by showing that the language of COGSA Section 4(5) [liability limitation] is contained in the bill of lading.” Nemeth v. General S.S. Corp., Ltd., 694 F.2d 609, 611 (9th Cir.1982). Language in the bill of lading “to the same effect” as the statute is adequate. Pan American World Airways, Inc. v. California Stevedore & Ballast Co., 559 F.2d 1173, 1176 (9th Cir.1977). On the other hand, the mere incorporation of COGSA by reference is not adequate. Komatsu, 674 F.2d at 809-10. Once the carrier meets this initial burden, “the burden of disproving fair opportunity [shifts] to the shipper.” Carman Tool, 871 F.2d at 899. The district court concluded that the language contained in the bill of lading tracked the language of the statute and therefore satisfied the carrier’s" }, { "docid": "22852627", "title": "", "text": "Cir.1981). The courts are in agreement that the carrier bears the burden of proving that it has afforded the shipper the requisite “fair opportunity” notice. See, e.g., General Elec., 817 F.2d at 1029; Tessler Bros. (B.C.) Ltd. v. Italpacific Line, 494 F.2d 438, 443 (9th Cir.1974). Our review leads us to conclude that the bill of lading in this ease afforded “fair opportunity” notice sufficient to satisfy whatever essential requirements are imposed by these other courts. Constructive notice was afforded by the “clause paramount” legibly printed on the reverse side of the bill of lading: “This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act_” See Cincinnati Milacron, 804 F.2d at 837 (“clause paramount” provides constructive notice). A more particular notice was contained in the bill of lading “valuation clause”: 20. VALUATION. Carrier shall not be liable in any event for any loss, damage, misdelivery or delay with respect to the goods in an amount exceeding $500.00 lawful money of the United States per package, or in the case of goods not shipped in packages, per customary freight unit, unless the nature of the goods and a valuation thereof higher than $500.00 is declared in writing by Shipper on delivery of the goods to Carrier and inserted in the Bill of Lading and extra freight is paid thereon as required by the applicable tariff to obtain the benefit of such higher valuation. See Carman Tool, 871 F.2d at 899 n. 4 (finding that bill of lading provision substantially similar to that sub judice recited terms of COGSA § 4(5) and thus afforded actual notice); cf. supra pp. 144-45 (quoting 46 U.S.CApp. § 1304(5)). McGee contends that Sea Barge did not demonstrate its entitlement to summary judgment on compliance with the “fair opportunity” requirement because there was competent evidence that Sea Barge failed to offer PREPA ad valorem rates based on the true value of the cargo. Specifically, McGee reiterates its claim below that Sea Barge failed to show that published tariffs were available for a drilling rig on this voyage. McGee" }, { "docid": "5598111", "title": "", "text": "(2) (q) ]; and The limited liability of $500 per package or freight unit unless the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading [see COGSA, § 4(5), 46 U.S.C. § 1304(5) ]. The exemptions, immunities and limitations which are pertinent to the instant case are the complete exemption from liability [see COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a)]; the $500 limitation on liability [see COGSA, § 4(5), 46 U.S.C. § 1304(5)]; and the one-year period of limitations for instituting suit [see COGSA, § 3(6), 46 U.S.C. § 1303(6)]. B. The $500 Limitation on Amount of Liability In Tessler Brothers (B.C.) Ltd. v. Italpacific Line and Matson Terminals, Inc. (9 Cir. 1974) 494 F.2d 438, this court squarely faced the issue of whether a “Himalaya” clause was valid which purported clearly and expressly to extend to a non-carrier the $500 limitation on liability which COGSA, § 4(5), 46 U.S.C. § 1304(5), provides for carriers. That clause was held valid, and Tessler Brothers is binding authority as regards the inclusion in bills of lading of limitations on amount of non-carrier’s liability. C. The Complete Immunity from Liability for Negligence in Navigation and Management 1. The historic background of COG-SA. In order adequately to understand the nature of the immunity under COG-SA, § 4(2) (a), 46 U.S.C. § 1304(2) (a), one should keep in mind the history of the Act and of its predecessor, the Hart-er Act, 27 Stat. 445 (1893), 46 U.S.C. §§ 190-196. These two acts, especially COGSA, are by far the most important bodies of law for dealing with the question of who bears the loss when cargo is damaged in ocean commerce. Prior to their enactment, the general law of maritime carriage made the public carrier of goods by sea absolutely responsible for their safe arrival unless loss or damage was caused by Act of God or of the public enemy, or by the inherent vice of the goods or the fault of the shipper. Thus the carrier’s liability was determined without regard" }, { "docid": "19362045", "title": "", "text": "was made applicable by contract. We concluded that “[b]ecause the language of COGSA is not inconsistent with foreign jurisdiction clauses, we reject the view that COGSA preempts all contract terms when its sole force is by incorporation into a contract for foreign transportation,” 647 F.2d at 989, and permitted the limitation to apply. The Carrier and Stevedore argue that our statement in North River that we “rejected] the view that COGSA preempts all contract terms when its sole force is by incorporation into a contract for foreign transportation” determines the outcome in this case. However, because this statement can be characterized as dictum, North River does not dictate our holding. Rather, the language of North River indicates a direction for Ninth Circuit law that we recognize by holding that the parties here were free to define covered goods in a way contrary to COGSA’s definition. Thus we concur in the logic of other courts of appeals decisions, see supra, and hold that terms inconsistent with COGSA, but which are otherwise valid contract terms, may be given force where COGSA is incorporated into a contract for foreign carriage to which it would not apply ex proprio vigore. 2. Opportunity to Declare a Higher Value Even given that the incorporation of COGSA applied to the shipment of the yacht, the Carrier and the Stevedore must also demonstrate that the shipper was given a fair opportunity to opt out of the bill of lading’s limitation of liability. In this circuit, a carrier can limit its liability for cargo damage to $500 per package or customary freight unit pursuant to the bill of lading and section 4(5) of COG-SA, 46 U.S.C.App. § 1304(5), if the shipper is given a fair opportunity to opt out of that limitation by declaring a higher value, but does not do so. Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897, 899 (9th Cir.1989); Tessler Bros. (B.C.) Ltd. v. Ital-pacific Line, 494 F.2d 438, 443 (9th Cir.1974). Moreover, if the bill of lading contains an express recitation of the $500 limitation (rather than a mere incorporation of" } ]

[ { "docid": "18598558", "title": "", "text": "appeared before the court on January 10, counsel for Richard and for one other creditor, Testa Distributing Company, Inc. (not herein a party), announced to the court that on that same morning they had filed an involuntary petition in bankruptcy against Capital. They then asserted, for the first time, that the court was stayed from further proceedings in the interpleader matter by virtue of the automatic stay provisions of 11 U.S.C. § 362. They also contended that the filing of the petition had removed the instant case from the effect of the insolvency statute, 31 U.S.C. § 3713, because that statute specifically provided that the priority estab lished in it does not apply in a “case under Title 11,” 31 U.S.C. § 3713(a). In an opinion filed on January 31, 1983, the district court held that it was not prohibited from proceeding upon the merits of the government’s claim despite the automatic stay provisions of 11 U.S.C. § 362, because it possessed the power to withdraw the order of reference of the involuntary proceedings to the bankruptcy court and then lift the automatic stay provisions which would otherwise apply. NLT Computer Services v. Capital Computer Systems, 31 B.R. 960 (M.D.Tenn.1983). The court withdrew the reference, lifted the stay, and proceeded to consider the merits of the government’s motion. It determined that in this case, the government’s rights under the general insolvency statute were unimpaired by the intervening involuntary bankruptcy proceedings against Capital because, in its view, the interpleader action was not a “case under Title 11” as that term was incorporated into section 3713(a). It, therefore, evaluated the competing rights of the several claimants to the fund under the provisions of section 3713 and decided that the government’s claim was entitled to priority over the claims of the debtor and the other defendants. As the government’s claim was admittedly greater in amount than the sum available in the interpleader action, the district court entered a judgment directing payment to the United States of all the funds on deposit with the court. Id. II. We first address the unusual procedural posture" } ]

[ { "docid": "18558081", "title": "", "text": "the application of federal standards of alimony, maintenance or support, such concurrent jurisdiction does not exist with regard to the provisions of 11 U.S.C. § 362. The automatic stay issued by the bankruptcy court which becomes effective upon the filing of a bankruptcy petition is integral to the entire statutory scheme of Title 11 and represents a considered congressional determination that a debtor, creditors and other interested parties in a bankruptcy proceeding must be guaranteed an immediate period of time in which to propose a reorganization of the debtor’s finan cial affairs or an immediate opportunity for a court appointed trustee to examine the assets and liabilities of a debtor free from any pressure brought by an individual creditor or interested party. It is the bankruptcy court alone that has the exclusive jurisdiction to determine questions involving the automatic stay. This position was recently approved by the Sixth Circuit Court of Appeals in NLT Computer Services, Corporation v. Capital Computer Systems, Inc., 755 F.2d 1253 (6th Cir.1985) in which an involuntary bankruptcy petition was filed only minutes before a district court, sitting in the same district as the bankruptcy court, was to commence a hearing on a summary judgment motion involving a federal insolvency proceeding that had previously been filed against the debtor pursuant to 31 U.S.C. § 3713. The district court, at the time of its hearing, withdrew the case from the bankruptcy court, removed the automatic stay and heard the summary judgment motion. The court of appeals in reversing the district court stated: In our view, the district court’s action short-circuits the orderly procedure for the administration of bankruptcy stays by failing to recognize the legal effect of both the filing of the involuntary bankruptcy proceedings and the issuance of the automatic stay. We assume, as did the parties and the trial judge, that the involuntary bankruptcy petition was in fact filed. Yet, in our view, the fact that bankruptcy proceedings are pending in a specific United States district court does not confer upon any judge sitting in that court the right to lift an automatic stay as" }, { "docid": "637425", "title": "", "text": "Debtor seeks damages of a compensatory and punitive nature, as well as criminal and civil contempt against the Defendants. In turn, the Defendants argue that their actions did not violate the automatic stay. As such, they request that the Court deny the relief the Debtor seeks. CONCLUSIONS OF LAW A. The Automatic Stay The success or failure of the Debt- or’s adversary complaints depends upon whether a violation of the automatic stay occurred. The automatic stay provisions of the Bankruptcy Code are quite broad. In particular,, these provisions provide, in part, as follows: Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or'to recover a claim against the debtor that arose before the commencement of the case under this title; (2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title; ... 11 U.S.C. § 362(a)(1) & (a)(2). Under these provisions, all proceedings against the debtor and his property are stayed during the pen-dency of the bankruptcy case. The automatic stay, however, does not allow a debtor to challenge the prepetition conduct of a creditor. Moreover, claims against the debtor that arise postpetition do not come within the scope of § 362(a) since they could not have been brought before the bankruptcy case was commenced. See In re Petruccelli, 113 B.R. 5, 6 (Bankr.S.D.Cal.1990). Despite the broad scope of the automatic stay, however, it does not serve to stay all proceedings involving the debtor. Heflin v. Heflin (In re Heflin), 145 B.R. 560, 562 (Bankr.S.D.Ohio 1992); In re Shuman, 122 B.R. 317, 318 (Bankr.S.D.Ohio 1990). In fact, § 362(b) of the Bankruptcy Code expressly provides that certain actions are not stayed by the filing" }, { "docid": "18890721", "title": "", "text": "not seek enforcement of the requested money judgment but only entry of judgment, which would fix the amount of the debtors’ liability for violation of the FCA. The bankruptcy court held that § 362(b)(4) does not except the government’s proposed FCA action against the debtors because the action is one solely for the pecuniary advantage of the government, rather than to protect public health or safety. In re Commonwealth Cos., Inc., 80 B.R. 162, 165 (Bankr.D.Neb.1987). In support of its holding, the bankruptcy court concluded that Congress intended § 362(b)(4) to permit an action for money damages only if the damages are sought in conjunction with some sort of injunctive relief. Id. at 164. The district court affirmed, finding that the “pecuniary purpose’’ test used by the bankruptcy court was the correct legal standard and that the bankruptcy court’s factual determinations in applying this test were not clearly erroneous. II. Our standard of review is the same as that used by the district court. We review the bankruptcy court’s legal conclusions de novo and its factual findings under the clearly erroneous standard. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). It is undisputed that if not excepted by § 362(b)(4), the government’s proposed FCA action against the debtors is subject to the automatic stay of § 362(a), which states that the filing of a bankruptcy petition operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the ease under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. Section 362(b)(4) provides that the filing of a petition does not operate as a stay “under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit’s police or regulatory power.” A. At the outset, we must reject the bankruptcy court’s view" }, { "docid": "10222640", "title": "", "text": "U.S. 549, 557, 35 S.Ct. 289, 291, 59 L.Ed. 713 (1915). Since the Second Circuit appears to be leaning away from Frenville, and since recent case law has exposed significant shortcomings in the case, this court would decline to follow Frenville, and find instead that Van Dorn’s claim for indemnity and contribution is a pre-bankruptcy petition claim against the bankruptcy estate, subject to Bankruptcy Court jurisdiction. VIOLATION OF THE AUTOMATIC STAY 11 U.S.C. § 362 In order to insure exclusive Bankruptcy Court jurisdiction over a debtor’s financial affairs, 11 U.S.C. § 362 automatically stays the commencement of a judicial proceeding outside of Bankruptcy Court by a pre-petition creditor against a debtor, until the debtor’s bankruptcy is closed or dismissed. The automatic stay does not prohibit the prosecution of an action against a debtor based upon a claim that arose after the filing of the bankruptcy petition. In re M. Frenville Co; Turner Broadcasting Sys. Inc. v. Sanyo Elec., Inc. 33 B.R. 996 (Bankr.N.D.Ga.1983), aff’d 742 F.2d 1465 (11th Cir.1984). In light of the court’s suggestion that Van Dorn’s claim arose pre-pe-tition, the court suggests that Van Dorn must move to vacate the automatic stay before proceeding further in District Court. In light of the court’s suggestion below that Van Dorn’s claim is non-dischargeable in bankruptcy, the court would be inclined to grant a motion to vacate the stay for “cause” under 11 U.S.C. § 362(d)(1). VAN DORN’S CLAIM IS NON-DISCHARGEABLE The court presumes that non-discharge-ability constitutes “cause” to lift the automatic stay against litigation of a claim, but the parties did not brief the nondischarge-ability issue in this case: whether a creditor who is unaware of his claim against a debtor before the bankruptcy plan is confirmed can later obtain a non-dischargeable judgment of his claim. 11 U.S.C. § 1141(d)(1)(A) provides as follows: (d)(1) Except as otherwise provided in this subsection, in the plan, or in the order confirming the plan, the confirmation of a plan— (A) discharges the debtor from any debt that arose before the date of such confirmation, and any debt of a kind specified in section" }, { "docid": "23648428", "title": "", "text": "1986, a motion for reconsideration of the Court’s January 3 Order was granted. The matter was set for further hearing on February 18, 1986, at which time Counsel were given leave to file memoranda in support of their positions. The filing of a Bankruptcy petition operates as a stay against certain actions of creditors. In relevant part, § 362(a) provides that filing of a petition: “Operates as a stay applicable to all entities, of— (a) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before commencement of the case under this Title, or to recover a claim against the debtor that arose before the commencement of the case under this Title;” Unless a party files a motion for relief from the stay under § 362(d) or (f) , under § 362(c) , the automatic stay continues until property is no longer property of the estate and the case is either closed, dismissed, or a discharge is granted, whichever comes first. Under § 362(a), Wimmer was stayed from proceeding on her Motion for Judgment for damages against the Debtor in state court by the filing of his petition here. Wimmer never filed a motion for relief from the stay pursuant to § 362(d) or (f) in order to reduce her claim to judgment. The automatic stay continued in effect until the Debtor was granted a discharge on September 6, 1984. Upon the granting of a discharge, the automatic stay of § 362 is dissolved and is replaced by the permanent injunction of 11 U.S.C. § 524. In re Aldrich, 9 C.B.C.2d 1073 (Bankr.App. 9th Cir.1982); In re White Motor Credit Corp., 37 B.R. 631, 643 (N.D.Oh.1984); aff'd 761 F.2d 270 (6th Cir.1985). Section 524 outlines the effects of a discharge in Bankruptcy and, in relevant part, provides that: “(a) A discharge in a case under this title— (1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the" }, { "docid": "22471263", "title": "", "text": "and reassign the case to a district court. However, the rule — on its face — establishes a procedure whereby bankruptcy matters are automatically referred from the district court to the bankruptcy court, and expressly allows the district court to withdraw the reference “at any time on its own motion or on timely motion by a party.” Under this rule, the Court has withdrawn the reference of In re Lilienfield to the Bankruptcy Court and has ordered that the case be transferred to this Court. This Court is not the first district court to take such action. In NLT Computer Services v. Capital Computer Systems, 31 B.R. 960 (M.D.Tenn.1983), a federal district court was sitting on an interpleader case. On the morning of the day of a hearing, two of the creditors seeking funds deposited with the court filed an involuntary petition against the debtor, who had been made a party to the case. The court determined that the automatic stay imposed by 11 U.S.C. § 362(a) did not apply to an inter-pleader action, and held, as an alternate ground, that it had the power to withdraw the reference of the case to a bankruptcy court, revoke the stay with regard to the matter before it, and then refer the remainder of the case to the bankruptcy court. ... the rule gives this Court the power to withdraw the reference at any time upon its own motion. Therefore, this Court, at the hearing, withdrew the reference to bankruptcy court regarding the involuntary petition filed against the debtor, lifted the automatic stay (if it applies at all) as it pertains to this interpleader action; and remanded the bankruptcy case to the bankruptcy court for any further proceedings in this matter. 31 B.R. at 962. This Court has watched with alarm as major corporations have filed for Chapter 11 reorganization or threatened to file Chapter 11 petitions to evade existing labor contracts, or to invoke the automatic stay provision to evade pending litigation. As will be discussed hereafter, the Court considers such practices to be a gross abuse of the bankruptcy proceedings." }, { "docid": "18558082", "title": "", "text": "only minutes before a district court, sitting in the same district as the bankruptcy court, was to commence a hearing on a summary judgment motion involving a federal insolvency proceeding that had previously been filed against the debtor pursuant to 31 U.S.C. § 3713. The district court, at the time of its hearing, withdrew the case from the bankruptcy court, removed the automatic stay and heard the summary judgment motion. The court of appeals in reversing the district court stated: In our view, the district court’s action short-circuits the orderly procedure for the administration of bankruptcy stays by failing to recognize the legal effect of both the filing of the involuntary bankruptcy proceedings and the issuance of the automatic stay. We assume, as did the parties and the trial judge, that the involuntary bankruptcy petition was in fact filed. Yet, in our view, the fact that bankruptcy proceedings are pending in a specific United States district court does not confer upon any judge sitting in that court the right to lift an automatic stay as to any other proceedings before him. The Bankruptcy Act and rules carefully set forth the procedures for the administration of bankruptcy proceedings. The stay provisions of Section 362 are automatic and self-operating and those who have knowledge of the pendency of a bankruptcy action and stay are bound to honor the stay unless and until it is properly lifted. See Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983), cert. denied, 467 U.S. 1253, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984). In our view, the trial judge in these proceedings was in a position no different from that of any judge presiding in any other pending federal, state, or local court proceedings which could affect the assets of a bankrupt. It certainly cannot seriously be claimed that were such a suit pending in another district court or in a state court, the judge of that court could proceed to decide that suit on the merits without a motion to lift the stay under 11 U.S.C. § 362(d) having first been filed in the bankruptcy" }, { "docid": "1121478", "title": "", "text": "proceeds that the right to payment under CERCLA or HSA does not arise until cleanup costs are incurred. DHS thus argues that until cleanup costs are incurred, no right to payment, and no cognizable claim, exists for bankruptcy purposes. This theory has been adopted by at least one circuit court. In In re Frenville, 744 F.2d 332 (3rd Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985), a creditor appealed a district court order holding the creditor’s indemnity action against the Chapter 7 debtor was barred by the automatic stay. While the debtor’s acts underlying the indemnity occurred prepetition, the suit against the creditor was filed postpetition, prompting the indemnification action. In determining when the claim originated, the Third Circuit first noted the Bankruptcy Code does not clearly define when a “right to payment” arises, and therefore applied state law. Id. at 337. The relevant state law declared a right to payment on an indemnity arises upon payment of the judgment flowing from the act. The Frenville court then concluded the suit against the creditor had been filed postpetition, the creditor’s claim therefore arose postpetition, and the automatic stay did not apply. Id. The court in United States v. Union Scrap Iron & Metal, 123 B.R. 831 (D.Minn.1990), cited by the DHS, adopted the same reasoning, although without mention of Frenville. However, Frenville has been roundly criticized by several courts. As stated in In re A.H. Robins Co., 63 B.R. 986, 992 (Bankr.E.D.Va.1986), the Frenville court confuses “a ‘right to payment’ for federal bankruptcy purposes with the accrual of a cause of action for state law purposes.” Indeed, under Frenville and Union Scrap Iron we can perceive no difference between claims inside or outside bankruptcy. Such an interpretation simply is unwarranted from a reading of § 101(4), which includes contingent and unmatured rights to payment, as well as those having been reduced to judgments. Further, holding that the cause of action, or in the present case, the statutory right to payment, triggers recognition of the bankruptcy claim contravenes the overriding goal of the Bankruptcy Code to" }, { "docid": "18637950", "title": "", "text": "Admin.News 5963, 6266; S.Rep. No. 989, 95th Cong., 2d Sess., 21-22 (1978), reprinted in 1978 U.S. Code Cong, and Admin.News 5787, 5807-OS. This broad definition of “claim” is intertwined with the claims allowance provision in Section 502 which now provides an estimation process for contingent or unliq-uidated claims. 11 U.S.C. § 502(c). The Bankruptcy Code stays only those proceedings which were commenced or could have been commenced prepetition and proceedings on claims which arose pre-petition. See 11 U.S.C. § 362(a)(1). The automatic stay has no effect whatsoever upon claims which arose after the petition was filed. See, e.g., Turner Broadcasting System, Inc. v. Sanyo Electric, Inc., 33 B.R. 996, 999 (N.D.Ga.1983), aff'd, 742 F.2d 1465 (11th Cir.1984). The interaction of Sections 101(4) and 502(c), along with the operation of the automatic stay under Section 362(a), “give authority for bankruptcy courts to deal comprehensively with all facets of reorganization.” In re Pettibone Corp., supra at 925. The parties point out a split of authority between the circuits regarding the interpretation under Section 362(a)(1) of when a right to payment of an unmatured claim arises. The applicants support adoption of the view held by the Third Circuit. In Matter of M. Frenville Co., 744 F.2d 332 (3rd Cir.1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 911, 83 L.Ed.2d 925 (1985) the Circuit Court held that the automatic stay was inapplicable to a situation in which the acts of the debtor which gave rise to the cause of action occurred prepetition but a state cause of action based on those acts did not arise until postpetition. The Third Circuit distinguished the result in Frenville from situations involving indemnity or security contracts where the parties agree in advance that one will indemnify the other in the event a specified event occurs. In the case of such a contract, the Third Circuit acknowledges that a right to payment, albeit contingent, exists upon the signing of the agreement. Id. at 336. The debtors respond by citing several cases which expressly and openly criticize the result reached in Frenville. In In re Black, 70 B.R. 645 (Bankr.D.Utah" }, { "docid": "18603048", "title": "", "text": "party to the alleged facts giving rise to its § 510(c) action and because the supporting material facts and documents may be in possession of Defendants. As a further ground warranting denial of Defendants Rule 12(b)(6) and Rule 9(b) motions, there is now an emerging and respectable view that the Court may, in appropriate circumstances, invoke § 510(c) equitable subordination of a creditor’s claim without any proof of inequitable conduct. United States v. Virtual Networks Services Corporation (In the Matter of Virtual Networks Services Corporation), 902 F.2d 1246, 20 BCD 816, 818 (7th Cir. 1990). Whether this view is applicable here will await trial. c. Count III Violation of Automatic Stay. We have subject matter jurisdiction over Trustee’s 11 U.S.C. § 362 violation of the Automatic Stay action and determine it is a core proceeding because it arises within a Title 11 bankruptcy case and is essential to the proper and complete administration of Kelton’s Bankruptcy Estate. 28 U.S.C. § 157(b)(2)(A); § 157(b)(2)(G); and, 28 U.S.C. § 157(b)(2)(0). 11 U.S.C. § 362(a)(1), Automatic stay, provides in pertinent parts: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. Section 362(a)(1) provides the debtor with “a breathing spell from his creditors,” S.Rep. No. 989, 95th Cong., 2d Sess. 54-55 (1978) reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5840-41, for the purpose of permitting the debtor a chance to organize its economic affairs. There is no doubt in this Court’s mind that Trustee’s allegation that USAC filed a State Court lawsuit against Kelton after it and the other Defendants had filed an involuntary petition against Kelton is, without more, enough" }, { "docid": "10500494", "title": "", "text": "SUPPLEMENTAL OPINION Before RUTH BADER GINSBURG and SILBERMAN, Circuit Judges, and ROBINSON, Senior Circuit Judge. Opinion for the Court filed PER CURIAM. PER CURIAM: Shortly after rendition of our opinion and judgment but before issuance of the mandate on this appeal, we were advised that appellants had gone into involuntary bankruptcy and, at the time we acted, were involved in a proceeding under Chapter 11 of the Bankruptcy Code. This information posed the question whether Section 362(a)(1) of the Code, which provides for an automatic stay of certain non-bankruptcy activities in specified situations, had intercepted the appeal and thus temporarily precluded any disposition thereof. The mandate has been withheld pending resolution of this problem. With exceptions inapposite to the case before us, Section 362(a)(1) stipulated, among other things, that a petition initiating an involuntary bankruptcy case operates as a stay, applicable to all entities, of ... the commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the ease under this title.... We readily agree that this unambiguous provision “by its terms only stays proceedings against the debtor,” and “does not address actions brought by the debtor which would inure to the benefit of the bankruptcy estate.” Particularly in light of underlying legislative objectives, it could hardly be read any other way. The case at bar originated as an action by appellants against Fireman’s Fund Insurance Company to recover monies allegedly due on a contract of insurance. No counterclaim or cross-claim was ever asserted. The District Court entered summary judgment in favor of Fireman’s Fund, whereupon appellants came to this court. Our judgment reversed and remanded the case for further proceedings. In these circumstances, we hold that the automatic stay provision had no proper role respecting this disposition, and that the mandate should now issue forthwith. So ordered. . See Carley Capital Group v. Fireman’s Fund Ins. Co., 278 U.S.App.D.C. 143, 877 F.2d 78" }, { "docid": "11252720", "title": "", "text": "the estate.... ” 11 U.S.C. § 362(a)(3). Hence, the Bankruptcy Court for the Southern District of Florida had exclusive jurisdiction over the debtor and the property of its bankruptcy estate. The district court should have dismissed the case for lack of jurisdiction. Ill The Secretary presents an alternative argument. She claims that § 362(a)(1) does not stay the instant action because this judicial proceeding relates to post-petition conduct of the debtor insofar as the records in question did not exist at the time of the original bankruptcy filing and the debtors’ employees had not performed the work that generated them. As the Secretary formulates it, her argument apparently seeks to invoke the limitation on the § 362(a)(1) automatic stay, which applies only to an “action or proceeding against the debtor that ... could have been commenced before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1). The Secretary’s argument depends further on her contention that HSSI’s conversion of its bankruptcy from Chapter 11 to Chapter 7 had no effect on attempts to collect a post-petition-debt because such conversion does not re-trigger the automatic stay provision, so as to reimpose the stay. See In re State Airlines, Inc., 873 F.2d 264, 267-69 (11th Cir.1989) (refusing to reimpose the stay against parties previously granted relief therefrom), but see Matter of Nichols, 134 B.R. 236 (Bankr.S.D.Ohio 1991) (imposing a new stay), and In re Parker, 154 B.R. 240 (Bankr.S.D.Ohio 1993) (holding that court, may, in its discretion impose a new stay). The Code does not clearly address whether conversion “reimposes” the automatic stay and courts have split on the question. But this notion of inquiring whether conversion “reimposes” the stay for purposes of analyzing the limitation on § 362(a)(1) seems academic because other Code provisions adequately address the question at issue. The Code provides that “[a] claim against ... the debtor that arises after the order for relief [ie. the original filing of the petition, see 11 U.S.C. § 301] but before conversion in a ease that is converted under section 1112 ... of this title, other than a claim" }, { "docid": "18598557", "title": "", "text": "in the Chancery Court of Davidson County, Tennessee to satisfy that judgment. Appellant Gallo claimed its rights as a secured creditor of Capital; Capital had conveyed a security interest in the monies to Gallo during a suit which Gallo had brought against Capital in a Tennessee state court for breach of contract damages. Gallo asserted that its secured interest was valid and that a proper financing statement had been recorded on January 18, 1982. NLT paid each of the $75,000 sums into the district court’s registry as they became due, and those funds were placed out at interest pending resolution of the several claims against them. NLT then withdrew from further active participation in the case. After a certain amount of discovery had been taken and one trial date canceled, the district court on October 29, 1982 ordered hearing on the government’s motion for summary judgment reset for 1:00 p.m., January 10, 1983. The court also ordered the parties to submit a stipulation of the facts and appropriate briefs before the hearing. When the parties appeared before the court on January 10, counsel for Richard and for one other creditor, Testa Distributing Company, Inc. (not herein a party), announced to the court that on that same morning they had filed an involuntary petition in bankruptcy against Capital. They then asserted, for the first time, that the court was stayed from further proceedings in the interpleader matter by virtue of the automatic stay provisions of 11 U.S.C. § 362. They also contended that the filing of the petition had removed the instant case from the effect of the insolvency statute, 31 U.S.C. § 3713, because that statute specifically provided that the priority estab lished in it does not apply in a “case under Title 11,” 31 U.S.C. § 3713(a). In an opinion filed on January 31, 1983, the district court held that it was not prohibited from proceeding upon the merits of the government’s claim despite the automatic stay provisions of 11 U.S.C. § 362, because it possessed the power to withdraw the order of reference of the involuntary proceedings to" }, { "docid": "12701540", "title": "", "text": "App.3d 731, 654 N.E.2d 1061, 1068 (1995) (citation and quotation omitted). On appeal, Plaintiff merely argues that a reasonable person would object to being accused of adulterating his specimen, refusing to test, or being disqualified for allegedly failing to follow procedures. Plaintiff also contends that a reasonable person would object to specific gravity and creatine levels being made public. Aside from Plaintiff’s failure to cite any authority in support of his claim, he has failed to demonstrate that the circumstances surrounding his drug test were communicated “to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Id. at 1068. As a result, Plaintiff cannot sustain a cause of action for invasion of privacy. Accordingly, the district court properly granted summary judgment. 4. The District Court’s Imposition of an Automatic Stay as to Defendants Pritchard and APIC Finally, Plaintiff contends that the district court erred by granting summary judgment to Defendants because the automatic stay provisions of the Bankruptcy Code suspended Plaintiffs lawsuit against Defendants Pritchard and APIC. Plaintiff argues that unusual circumstances require that the district court extend the automatic stay to the solvent co-defendant companies. Specifically, Plaintiff argues that a contractual relationship existed between the co-defendants, i.e., Defendant Pritchard leased trucks and drivers to Mohawk and Mohawk contracted with MedExpress, Austintown and Drug Free to conduct the drug testing, which warrants the extension of the stay to all defendants in the case. A petition filed for bankruptcy operates as a stay and is applicable to the continuation of a judicial proceeding against the debtor. See 11 U.S.C. § 362(a)(1). The automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a)(1) stays an “action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.... ” Extending a stay to nonbankrupt co-defendants is justified only in “unusual circumstances.” In re Eagle-Picher Indus., Inc., 963 F.2d" }, { "docid": "8321822", "title": "", "text": "court domestic relation matters (§ 523(a)(5) and § 362(b)(2)); nevertheless, the rights extended to entities holding claims arising from domestic relations proceedings must be exercised in a manner consistent with federal law, including the automatic stay provisions of the Bankruptcy Code. The automatic stay is integral to the bankruptcy process and its importance cannot be overemphasized. Along these lines the court in In re Van Hoose, 31 B.R. 332, 337 (Bankr.S.D.Ohio 1983) noted: Although the role of the Bankruptcy Court may be perfunctory when it is presented with a clear case of a debt constituting alimony, maintenance, or support, its judicial processes may not be bypassed by a creditor assuming he or she may proceed with state court collection efforts because a debt is apparently “clearly” one excepted under § 362(b). The Code does not contemplate ex parte “judicial” resolution. The Sixth Circuit has recently held: This provision “has been described as ‘one of the fundamental debtor protections provided by the bankruptcy laws.’ ” The automatic stay extends to virtually all formal and informal actions against property of the bankruptcy estate. It is intended to “stop[ ] all collection efforts, all harassment and all foreclosure actions.” Actions taken in violation of the automatic stay generally are void, even if the creditor had no notice of the stay (citations omitted). In re Smith, 876 F.2d 524, 525 (6th Cir. 1989). See also NLT Computer Services, Corporation v. Capital Computer Systems, Inc., 755 F.2d 1253 (6th Cir.1985); Barnett v. Barnett, 9 Ohio St.3d 47, 458 N.E.2d 834 (1984). While § 362(b)(2) exempts from the protection of the automatic stay proceedings solely related to the collection of child support that has been awarded by an order entered prior to the filing of the petition in bankruptcy, an entity that takes action against the debtor or property of the estate during the pendency of the automatic stay, without first obtaining an order terminating, modifying, annulling or conditioning the automatic stay, does so at its own risk and exposes itself to liability for actual damages, including costs and attorney fees, and in appropriate circumstances, punitive" }, { "docid": "18598562", "title": "", "text": "at the hearing, withdrew the reference to bankruptcy court regarding the involuntary petition filed against the debtor; lifted the automatic stay (if it applies at all) as it pertains to this interpleader action; and remanded the bankruptcy case to the bank ruptcy court for any further proceedings in that matter. The second question is whether the filing of the bankruptcy petition removes this case from the effect of Section 3713(a), as contended by Testa and Richard. The last sentence of the statute provides: “the priority established under this section does not apply, however, in a case under title 11.” But this interpleader action is not one “under title 11.” The complaint herein was filed on June 22, 1982, and is in no way related to the bankruptcy petition filed on January 10, 1983, under Title 11. The Court is unaware of, and neither Testa nor Richard have cited, any statutory provision or other authority which would somehow convert the instant inter-pleader action into one “under Title 11” simply because an involuntary bankruptcy petition has been filed against a party to this proceeding. The Court therefore finds that the filing of the petition does not stay this action. NLT Computer Services v. Capital Computer Systems, 31 Bankr. 960, 961-62 (M.D.Tenn.1983). We have nothing before us in the record prepared for this appeal to substantiate the pendency of involuntary bankruptcy proceedings. Also, the record contains little to explain the procedures which the district judge employed in reaching his conclusion that he was empowered to proceed in the interpleader action and to disregard the automatic stay provisions of section 362. Other than the district court’s opinion, the only reference to the bankruptcy case is found in entry number 56 on the district court docket sheet for the interpleader action; that entry provides: ORDER: (1) Order of Reference to Bankruptcy Court in the involuntary bankruptcy case involving Capital Computer Systems, Inc., which was initiated by the filing of a petition on 1-10-83 is WITHDRAWN, that the automatic stay provided in 11 U.S.C. Sec. 362 is lifted as it relates, if at all, to this" }, { "docid": "1700601", "title": "", "text": "BOWMAN, Circuit Judge. Westark Specialties, Inc., (“Westark”) and Paul Henson appeal from a judgment entered in the District Court awarding Don Farley $3,246,000.00 and Robert Mendenhall $351,110.00 in damages on their common law fraud and federal securities law claims against Westark and Henson. During the pendency of these appeals, both Westark and Henson have filed bankruptcy petitions. Farley suggests that the appeals are stayed as a result of appellants’ bankruptcy filings. Westark and Henson counter that, because they brought these appeals, the appeals are not proceedings against the debtor, and therefore are not subject to the automatic stay of 11 U.S.C. § 362 (1988 & Supp. IV 1992). Athough other courts have addressed the issue of whether an appeal brought by a debtor from a judgment obtained against it as a defendant is stayed by the debtor’s bankruptcy, the issue is one of first impression for our Court. We conclude that such an appeal is stayed. Section 362 provides that: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.] 11 U.S.C. § 362(a)(1). The purpose of the automatic stay is to give the debtor “a breathing spell from his creditors” in which he may “attempt a repayment or reorganization plan.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6296-97. The automatic stay also protects creditors by averting a scramble for the debtor’s assets and promoting instead “an orderly liquidation procedure under which all creditors are treated equally.” Id. at 340, reprinted in 1978 U.S.C.C.A.N. at 6297. Because the automatic stay applies to “the commencement or continuation ... of a judicial ..." }, { "docid": "19869310", "title": "", "text": "and constitutional violations related to TWA’s decision to fire Dean at ALPA’s behest. The case travelled a tortuous path and has visited the Ninth Circuit twice — in Dean v. Trans World Airlines, Inc., 708 F.2d 486, 487 (9th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 490, 78 L.Ed.2d 685 (1983) (Dean I), and Dean v. Trans World Airlines, Inc., 924 F.2d 805 (9th Cir.1991) (Dean 77) — before reaching us this third time. In Dean II, we affirmed a jury’s verdict that TWA was not contractually liable and reversed the partial summary judgment in favor of the defendants on the constitutional claim. On remand, TWA filed for summary judgment on the issues of constitutional and statutory liability. The parties seem to have finished all substantive briefing by early January 1992. On January 31, 1992, TWA filed for bankruptcy in Delaware. On February 4, 1992, the district court issued an order that, among other things, granted TWA’s summary judgment motion and dismissed Dean’s action against it because the law-of-the-case precluded finding TWA liable. The parties tell us that the court was not aware of the bankruptcy filing when it issued its order. On July 26, 1994, the bankruptcy court lifted TWA’s automatic stay. DISCUSSION The automatic stay of 11 U.S.C. § 362(a)(1) prevents the “commencement or continuation ... of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement” of the bankruptcy case. The circuits do not agree on the circumstances under which post-filing dismissal of an action against a debtor is an impermissible continuation that violates the stay. In the Ninth Circuit, such dismissal is permissible so long as it is “consistent with the purpose of the statute [11 U.S.C. § 362(a) ].” Independent Union of Flight Attendants v. Pan American World Airways, Inc., 966 F.2d 457, 459 (9th Cir.1992) (IUFA). Offering IUFA as authority, TWA asks us to affirm the district court’s judgment. Section 362(a) has two broad purposes. First, it provides debtors with protection against hungry creditors: It gives the debtor a breathing spell from" }, { "docid": "18506698", "title": "", "text": "stay provisions of 11 U.S.C. § 362. After a hearing, the bankruptcy court found that appellants had willfully violated the stay and awarded Mr. Carver $18,295.78 in damages. The district court affirmed the decision but allowed appellants credit for amounts spent to cure the mortgage ar-rearage and deducted the amount of Mr. Carver’s earnings loss from his general damages. This appeal followed. DISCUSSION On appeal, appellants argue that the contempt action in state court was not stayed because it involved collection of delinquent support payments, and that as the arrear-ages were paid from money borrowed from Mr. Carver’s new father-in-law, no violation of the automatic stay occurred. Although we disagree that the state court proceedings at issue in this case were excepted from the automatic stay provisions of 11 U.S.C. § 362(a), we nevertheless reverse the judgment of the district court because we hold that the bankruptcy court should have abstained from entertaining Mr. Carver’s request for relief. A. Automatic Stay The automatic stay provisions of the Bankruptcy Code are quite broad. 11 U.S.C. § 362(a) provides in pertinent part: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.... Under this provision, all proceedings against the debtor or the debtor’s property are stayed during the pendency of the bankruptcy proceedings. Unless the action comes under an exception in 11 U.S.C. § 362(b) or a party seeks relief from the stay under 11 U.S.C. § 362(d), the stay remains in effect until the case is disposed of by the court. 11 U.S.C. § 362(c). This stay relieves the debtor from financial pressure during the pendency of bankruptcy proceedings. See" }, { "docid": "18598565", "title": "", "text": "the dilemma which the trial judge faced. It is difficult to fault him for proceeding as he did. All of the parties had known for months that January 10 was the date set for hearing on the motion for summary judgment, a hearing which could have disposed of the case on the merits. Yet, two of the parties saw fit to wait until the morning of the January 10 hearing to commence the involuntary bankruptcy proceedings and then take advantage of that action at the hearing. It is not surprising that their efforts were not met with great enthusiasm by the trial judge. Nevertheless, bankruptcy petitions, whether voluntary or involuntary, are never filed unless the peti tioner perceives some benefit from the act, and we believe that the creditors’ motivation in this case is neither worse nor better than that which normally triggers such filing. However frustrating the creditors’ timing might have been, we are unable to agree with the innovative method of dealing with this dilemma described in the district court’s opinion. In our view, the district court’s action short-circuits the orderly procedure for the administration of bankruptcy stays by failing to recognize the legal effect of both the filing of the involuntary bankruptcy proceedings and the issuance of the automatic stay. We assume, as did the parties and the trial judge, that the involuntary bankruptcy petition was in fact filed. Yet, in our view, the fact that bankruptcy proceedings are pending in a specific United States district court does not confer upon any judge sitting in that court the right to lift an automatic stay as to any other proceedings before him. The Bankruptcy Act and rules carefully set forth the procedures for the administration of bankruptcy proceedings. The stay provisions of section 362 are automatic and self-operating and those who have knowledge of the pendency of a bankruptcy action and stay are bound to honor the stay unless and until it is properly lifted. See Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984)." } ]

[ { "docid": "2899871", "title": "", "text": "987 (5th Cir.1983). . All the plaintiffs (including Baker’s survivors) settled with Mitsubishi before trial. Mitsubishi remains defendant to allow the court to apportion cause and determine the liability of the other defendants. See Duncan v. Cessna Aircraft, 665 S.W.2d 414, 420 (Tex.1984). . Lucas v. Texas Industries, Inc., 696 S.W.2d 372, 376-77 (Tex.1984). . Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549 (Tex.1985). . This duty is . rooted in both general pilot reliance for the service, Gill v. United States, 429 F.2d 1072, 1075 (5th Cir.1970), and the briefers’ manual. See FAA, Flight Services Handbook 7110.10F § 167(b)(1) (1981) [“Flight Services Handbook \"]. . See Pierce v. United States, 679 F.2d 617, 621 (6th Cir.1982). . See Davis v. United States, 824 F.2d 549, 552-53 (7th Cir.1987); Flight Services Handbook § 167(b). . Flight Services Handbook § 167(a). . Id. § 167(b). . Id. § 167(a). The area forecast in issue here filled two single-spaced pages. Reading it verbatim would take up almost five minutes, the duration of Baker's entire briefing. . Id. § 165. . 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). See Pullman-Standard v. Swint, 456 U.S. 273, 284 n. 14, 102 S.Ct. 1781, 1788 n. 14, 72 L.Ed.2d 66 (1982) (quoting United States Gypsum); Smith v. Hightower, 693 F.2d 359, 370 (5th Cir.1982). See abo Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc) (\"On motions for directed verdict and for judgment notwithstanding the verdict the court should consider all of the evidence — not just that evi dence which supports the non-mover’s case— but in the light and with all reasonable inferences most favorable to the party opposed to the motion.”). . 720 F.2d 1391, 1395-96 (5th Cir.1983). . Numerous witnesses testified to this point. Witnesses also testified that pilots such as Baker know, or should know, the freezing level by using their outside temperature gauge, and that, because Baker had turned on his engine air inlet heat during the climb, he must have known he was above the freezing level. Other witnesses" } ]

[ { "docid": "12510007", "title": "", "text": "States, 392 F.2d 462, 464-65 (5th Cir.1968); Tomlinson v. Lefkowitz, 334 F.2d 262, 264-65 (5th Cir.1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965). See also, e.g., United States v. Thomas, 709 F.2d 968, 972 (5th Cir.1983). The majority acknowledges that there was no breach of the plea of agreement, but nevertheless it, and the district court, seem to view the matter as if Johnson’s legitimate expectations from the agreement were frustrated. Again, however, the conviction stands and Johnson is bound by its necessarily implied findings. He never sought to challenge it. Having received a short, probated sentence for what we must presume was the willful, knowing, and intentional cheating of the United States out of several thousand dollars, and protected by that sentence from more severe punishment, he now collects several million dollars from the United States because this matter of public record — which he admits all the shareholders of his publicly-held company would have to have been specifically informed of anyway — was mentioned in two brief Galveston press releases. Neither the law nor the facts support this recovery. Johnson has indeed made a silk purse from a sow’s ear, and we should not countenance it. . 28 U.S.C. §§ 1346, 2671-2680. . Under this construction, section 6103 prohibits \"only the disclosure of confidential tax return information” and hence does not prohibit disclosure of return information once that information has been “made a part of the public domain.\" Lampert at 338. I am in essential agreement with Lampert. Cf. United States v. Wallington, 889 F.2d 573, 576 (5th Cir.1989) (18 U.S.C. § 1905 restricted to confidential information). .Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). . Similarly, in an action between private parties who owe a duty one to the other under state law, such as the duties" }, { "docid": "23533389", "title": "", "text": "the written \"Plea of Guilty” (see text at n. 4 supra), or even of all the terms of that document. . Similarly, the opinion states \"[w]e do realize, however, that the district court did err (as did we originally) in stating that § 6103 created a duty when it actually only established a standard of conduct.” Id. at 392. . Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . As the Court said in Sheridan, “By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm, and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to 'perform [its] “good Samaritan\" task in a careful manner.’ ” Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955). “The District Court and the Court of Appeals both assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person.\" Id., 487 U.S. at 401, 108 S.Ct. at 2455 (footnote omitted). . Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). Similarly, in an action between private parties who owe a duty one to the other under general state law, such as the duties owed by a seller to a buyer in respect to the quality of the goods sold, violation of applicable federal law may constitute a breach of that duty under a negligence per se concept, just as would violation of state law. See Gibson v. Worley Mills, Inc., 614 F.2d 464, 466 (5th Cir.1980). . State as well as federal courts would be available for section 7217 suits, as its grant of federal jurisdiction does not purport to be exclusive." }, { "docid": "23533339", "title": "", "text": "press release “[pjlaced him in a false fight in the public eye, by implying that he had admitted to falsifying deductions and altering documents.” The court held this claim barred because “[i]ts essence is injury to Johnson’s reputation, and it therefore falls under 28 U.S.C. § 2680(h), which exempts from the FTCA any claim arising from libel, slander or misrepresentation.” Id. The district court, citing Thompson v. Norton, 604 S.W.2d 473, 476 (Tex.Civ.App.— Dallas 1980, no writ), also rejected the claim of breach of confidential relationship, finding nothing akin to that between attorney/client, partners, or family members, or long-time relations of trust in which one party is justified in relying on the other to act in his best interest. It also rejected the notion that such a “concept embraces relations between a citizen and his government.” Johnson, 760 F.Supp. at 1233. The government appealed. Panel The panel majority, in its initial opinion, Johnson v. Sawyer, 980 F.2d 1490 (5th Cir.1992), affirmed the finding of liability on a negligence per se theory, reasoning that “the IRS agents’ violations of ... the duty established in § 6103 amounted to negligence under Texas tort law,” id. at 1497, and holding that the district court did not err “in finding that the actions of the IRS agents violated § 6103, and that when such a violation of a statute injures persons whose interests are intended to be protected by the statute, the violation constitutes a tort under Texas law, thereby impheating the FTCA.” Id. at 1505. Neither Johnson nor the panel addressed the district court’s holdings rejecting recovery on the basis of publication of embarrassing private facts about another, false light, and breach of confidential relation. The panel made a reduction in the portion of the award for lost pension benefits and remanded for further findings the $5,000,000 portion of the award for noneco-nomic damages from loss of position and associated emotional distress. The panel majority subsequently issued a “Supplemental and Amending” opinion. Johnson v. Sawyer, 4 F.3d 369 (5th Cir.1993). That opinion held that “Texas courts have consistently recognized that the existence of" }, { "docid": "12510008", "title": "", "text": "press releases. Neither the law nor the facts support this recovery. Johnson has indeed made a silk purse from a sow’s ear, and we should not countenance it. . 28 U.S.C. §§ 1346, 2671-2680. . Under this construction, section 6103 prohibits \"only the disclosure of confidential tax return information” and hence does not prohibit disclosure of return information once that information has been “made a part of the public domain.\" Lampert at 338. I am in essential agreement with Lampert. Cf. United States v. Wallington, 889 F.2d 573, 576 (5th Cir.1989) (18 U.S.C. § 1905 restricted to confidential information). .Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). . Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). . Similarly, in an action between private parties who owe a duty one to the other under state law, such as the duties owed by a seller to a buyer in respect to the quality of the goods sold, violation of applicable federal law may constitute a breach of that duty under a negligence per se concept, just as would violation of state law. See Gibson v. Worley Mills, Inc., 614 F.2d 464, 466 (5th Cir.1980). . This language and holding were cited with approval by the Third Circuit in Cecile Industries, Inc. v. United States, 793 F.2d 97 at 100 (3d Cir.1986). . The majority apparently takes some comfort from the fact that the prohibitions of section 6103(a) extend to certain state and local government employees and, in some specified circumstances, to private persons. Section 6103(a) provides: \"(a) General rule. — Returns and return information shall be confidential, and except as authorized by this title— (1) no officer or employee of the United States, (2) no officer or employee of any State, any local child support enforcement agency, or any local agency administering a program listed in subsection (1)(7)(D) who has or had access to returns or" }, { "docid": "17748436", "title": "", "text": "act or omission occurred. 28 U.S.C. § 1346(b) (emphasis added). Johnson must therefore base his FTCA claim on a state law cause of action. E.g., Standefer v. U.S., 511 F.2d 101, 104-05 (5th Cir.1975) overruled in other part, Culver v. Slater Boat, 688 F.2d 280 (1982) and 722 F.2d 114 (1983) (en banc); Edwards v. U.S., 519 F.2d 1137, 1139 (5th Cir.1975) cert. denied 425 U.S. 972, 96 S.Ct. 2170, 48 L.Ed.2d 795 (1976); Boe v. U.S., 352 F.2d 551, 552 (8th Cir.1965); see generally U.S. v. Muniz, 374 U.S. 150, 152, 159-66 & n. 27, 83 S.Ct. 1850, 1852, 1856-59 & n. 27, 10 L.Ed.2d 805 (1963). This Court accordingly has no jurisdiction to hear tort claims against the United States based on the violation of federal law. U.S. v. Smith, 324 F.2d 622, 625 (5th Cir.1963); Baker v. F & F Investment, 489 F.2d 829, 835 (7th Cir.1973); Zeller v. U.S., 467 F.Supp. 487, 504-05 (E.D.N.Y.1979); Mercer v. U.S., 460 F.Supp. 329, 330-31 (S.D.Ohio 1978). For example, in Zeller an Interstate Commerce Commission employee had issued a press release disclosing certain information about the plaintiff. 467 F.Supp. at 491-92. The court held that even if that release violated the nondisclosure provisions of the federal Privacy Act, that illegal disclosure provided plaintiff no claim under the FTCA absent the violation of some New York State law or duty. Id. at 504-05. Similarly here, Johnson cannot base his FTCA claims simply upon the violation of § 6103. Johnson, however, also alleges Texas state law causes of action for negligent supervision of employees and breach of a confidential relationship. Since Johnson therefore bases his FTCA claims on state law causes of action, he at this juncture satisfies the jurisdictional prerequisite of § 1346(b). B. Discretionary Function Exception This Court has no subject matter jurisdiction over FTCA claims which are “based upon the exercise pr performance [of] ... a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The seminal case construing" }, { "docid": "23533340", "title": "", "text": "agents’ violations of ... the duty established in § 6103 amounted to negligence under Texas tort law,” id. at 1497, and holding that the district court did not err “in finding that the actions of the IRS agents violated § 6103, and that when such a violation of a statute injures persons whose interests are intended to be protected by the statute, the violation constitutes a tort under Texas law, thereby impheating the FTCA.” Id. at 1505. Neither Johnson nor the panel addressed the district court’s holdings rejecting recovery on the basis of publication of embarrassing private facts about another, false light, and breach of confidential relation. The panel made a reduction in the portion of the award for lost pension benefits and remanded for further findings the $5,000,000 portion of the award for noneco-nomic damages from loss of position and associated emotional distress. The panel majority subsequently issued a “Supplemental and Amending” opinion. Johnson v. Sawyer, 4 F.3d 369 (5th Cir.1993). That opinion held that “Texas courts have consistently recognized that the existence of a duty is the threshold question in a negligence action,” id. at 377 (footnote omitted), and that “[ijnstead of creating a duty on the part of the IRS toward Johnson (as found by the district court and as initially found by this panel’s majority), § 6103 simply establishes a standard of care applicable to the independently existing duty to refrain from publicizing damaging or embarrassing private facts about another person.” Id. at 378. The opinion further held that “Texas recognizes an invasion of privacy cause of action for public disclosure of private facts,” id. at 373, and, despite the fact that Johnson did not so contend before this Court, went on to hold “that the district court erred in not holding for Johnson on his public disclosure cause of action.” Id. at 376. The panel majority did not modify any of its other previous holdings and ultimately reached the same result as it had originally. We took the case en banc, thus vacating the panel opinions. Discussion FTCA Requires Breach of State Law Duty The" }, { "docid": "23000414", "title": "", "text": "on both the control tower personnel and the pilots, “under VFR conditions, ultimate responsibility for the safe operations of an aircraft rests with the pilot.” Hamilton v. United States, 497 F.2d 370, 374 (9th Cir.1974) (holding where the pilot is flying under VFR conditions, it is the pilot’s obligation to see and avoid other traffic, even if he is flying with a traffic clearance). Moreover, “controllers are not required to foresee or anticipate the unlawful, negligent or grossly negligent acts of pilots.” In re Air Crash at Dallas/Ft. Worth Airport, 720 F.Supp. 1258, 1290 (N.D.Tex.1989), aff'd, 919 F.2d 1079 (5th Cir.), cert. denied, 502 U.S. 899, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). Under these principles of California tort law, we conclude that it was not clearly erroneous for the trial court to find that the controllers did not breach their duty. The record contains undisputed evidence that the Baron missed the approach point for a straight-in landing on runway 19R and that at some point thereafter, Snyder told Graham to “contact Travis departure.” This transmission could indicate that Snyder believed Graham missed the landing aqd expected him to execute the missed approach procedure. In addition, the controllers at Concord Tower do not have radar, and there was testimony at trial that without radar the controller could reasonably have thought that Graham was attempting to execute the missed approach procedure. In fact, Plaintiffs’ own pilot expert testified that upon hearing the tower transmit “contact Travis departure,” it would not be reasonable or prudent for Graham to do anything other than the published missed approach procedure. Moreover, the controllers knew Graham and knew that he was an experienced local pilot who was familiar with the area, the airport, and the published missed approach procedure. There is no duty to warn a pilot of a condition of which he would ordinarily know or of which he should be aware based on his training, experience and personal observations. Neff v. United States, 420 F.2d 115 (D.C.Cir.), cert. denied, 397 U.S. 1066, 90 S.Ct. 1500, 25 L.Ed.2d 687 (1969). We do not suggest that" }, { "docid": "12509982", "title": "", "text": "§ 6103(n) was mentioned, none of which are relevant to the instant case. See Wiemerslage, 838 F.2d at 902; Ungaro v. Desert Palace, Inc., 732 F.Supp. 1522 (D.Nev.1989); Crismar Corp. v. United States, 1989 WL 98843 (E.D.La.1989); Crown Cork & Seal Co. v. Pennsylvania Human Relations Comm'n, 463 F.Supp. 120 (E.D.Penn.1979). We believe it is clear, however, that a \"private individual under like circumstances” could be held liable under Texas tort law for a violation of the protections afforded to taxpayers by § 6103. . In re Air Crash at Dallas/Fort Worth Airport, 919 F.2d 1079, 1085 (5th Cir.) (citing Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), and 53 Tex.Jur.3d, Negligence § 129), cert. denied, — U.S. -, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). .We are not in a position to speculate what information would have been omitted from the press release to cause a different result (what information was critical to damage Johnson). It is at least conceivable that if a press release had been issued containing only the information agreed to with Powers or only the information that appeared in the court record, the same result might have occurred. Surely, however, it was not beyond reason for the jury to find that the confidential information that was released caused the damage to Johnson. . The plea agreement specified only that the Justice Department would not issue a press release. . 26 U.S.C. § 7217, which was in effect at the time this action arose, was replaced by § 7431. . 937 F.2d 134, 139-40 (5th Cir.1991). . Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended at 5 U.S.C. § 1101 et seq. (1988)). . Rollins, 937 F.2d at 139. . Id.; see Rivera v. United States, 924 F.2d 948, 951-52 (9th Cir.1991); Premachandra v. United States, 739 F.2d 392, 393-94 (8th Cir.1984). .It is true that § 7217 is comprehensive in terms of allowing actions for breaches of § 6103. This court, however, must recognize the significant distinction between \"comprehensive\" and \"preemptive.” Rollins and other authorities instruct us that we" }, { "docid": "23533390", "title": "", "text": "assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person.\" Id., 487 U.S. at 401, 108 S.Ct. at 2455 (footnote omitted). . Gill was a Texas case. Texas has recognized the good Samaritan doctrine since well before enactment of the FTCA. See, e.g., Colonial Savings Ass'n v. Taylor, 544 S.W.2d 116, 119 (Tex.1976). Similarly, in an action between private parties who owe a duty one to the other under general state law, such as the duties owed by a seller to a buyer in respect to the quality of the goods sold, violation of applicable federal law may constitute a breach of that duty under a negligence per se concept, just as would violation of state law. See Gibson v. Worley Mills, Inc., 614 F.2d 464, 466 (5th Cir.1980). . State as well as federal courts would be available for section 7217 suits, as its grant of federal jurisdiction does not purport to be exclusive. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). . Our proper reluctance to take such a step is enhanced by the concern, which would surely be shared by Texas judges, that any such Texas common law cause of action predicated solely on a violation of section 6103(a)(1) might well be preempted by section 7217. We deal here only with federal employees acting in the course of their employment, and the only portion of section 6103(a) which extends its prohibitions to them is clause (1), which states \"no officer or employee of the United States\" (clause (2) describes specified state and local governmental employees, and clause (3) speaks to specified “other person[s]\" (emphasis added), thus excluding federal employees). In Boyle v. United Technologies Corp., 487 U.S. 500, 503-06, 108 S.Ct. 2510, 2514-15, 101 L.Ed.2d 442 (1988), the Supreme Court stated: \"Another area that we have found to be of peculiarly federal concern, warranting the displacement of state law, is the civil liability of federal officials for actions taken in" }, { "docid": "17117242", "title": "", "text": "No damages were sought for those years. The verdict on the § 27.01 claims must be reversed. B. ICM also challenges the judgment against it for gross negligence. “To sustain a cause of action for negligence it is necessary to produce evidence of a duty, a breach of that duty, proximate cause and damage.” Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984). “What lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages.” Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (emphasis in original). “In determining whether there is some evidence of the jury’s finding of gross negligence, the reviewing court must look to all of the surrounding facts, circumstances, and conditions, not just individual elements or facts.” Id. As for breach of duty, Texas law required tax appraisers, not mortgage companies, to appraise at one hundred percent of market value. The evidence showed that mass appraisal techniques in use at the time the Investment Quotations were prepared did not produce appraisals equal to full market value. When Harshfield prepared the tax estimates, his research indicated that the values used were not one hundred percent of market. He determined that “there was a noncompliance with the state statute.” As a matter of law and fact, there was no breach of duty by ICM. Furthermore, the jury’s finding of causation cannot stand. There are two elements to proximate cause under Texas Law: cause in fact and foreseeability. See Urbach v. United States, 869 F.2d 829, 831 (5th Cir.1989). Cause in fact is established if the injury would not have occurred “but for” the allegedly wrongful act. In re Air Crash at Dallas/Fort Worth Airport, 720 F.Supp. 1258, 1279 (N.D.Tex.1989), aff'd, 919 F.2d 1079 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). Foreseeability requires that the injury complained of be of such a general character as might reasonably have been anticipated from the defendant’s conduct. Id. The tax estimates were not the cause in fact of" }, { "docid": "23533344", "title": "", "text": "violations also must constitute violations of duties ‘analogous to those imposed under local law.’ Cecile Indus., 793 F.2d at 100 (quoting Art Metal, 753 F.2d at 1158.)” See also, e.g., Zabala Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir.1977) (“... even where specific behavior of federal employees is required by federal statute, liability to the beneficiaries of that statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable private liability”); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558, 562 (8th Cir.1979) (“... federally imposed obligations, whether general or specific, are irrelevant to our inquiry under the FTCA, unless state law imposes a similar obligation upon private persons”). We have long followed this rule. United States v. Smith, 324 F.2d 622, 624-25 (5th Cir.1963) (the FTCA “simply cannot apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs” and is unavailable where “[t]he existence or nonexistence of the claim” “depends entirely upon Federal statutes”); Brown; Tindall v. United States, 901 F.2d 53, 56 at n. 8 (5th Cir.1990) (“a federal regulation cannot establish a duty owed to the plaintiff under state law,” citing Smith). See also Bosco v. U.S. Army Corps of Engineers, 611 F.Supp. 449, 454 (N.D.Tex.1985). This is not to say that the required state law must be one directly applicable to the conduct of federal employees or to the precise activity from which the claim arose. The Supreme Court made this clear in Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955), where it held that the United States could be liable under the FTCA for the Coast Guard’s negligence in the operation of its lighthouse, asserting “it is hornbook tort law that one who undertakes to warn the public of a danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” See also Block v. Neal, 460 U.S. 289, 293-95, 103 S.Ct. 1089, 1092, 75" }, { "docid": "23161270", "title": "", "text": "Sales Corp., 750 F.2d 1314 (5th Cir.1985) (en banc), and Jackson v. Johns-Manville Sales Corp., 757 F.2d 614 (5th Cir.1985) (Certificate from the United States Court of Appeals for the Fifth Circuit to the Supreme Court of Mississippi, Pursuant to Rule 46, Mississippi Supreme Court Rules). . Prosser and Keeton on Torts, § 30 at 165 (5th ed. 1984). See also Restatement (Second) of Torts, § 907 comment a. (1979); 12 Harper and James, The Law of Torts § 25.1 (1956). . Prosser and Keeton on Torts, supra note 5, § 30 at 165. . Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 130 S.W.2d 1048, 1053 (Tex.Civ.App.1939), rev'd on other grounds, 138 Tex. 1, 156 S.W.2d 265 (1941); Press v. Davis, 118 S.W.2d 982, 996 (Tex. Civ.App.1938), modified 135 Tex. 60, 140 S.W.2d 438, 440 (1940); Restatement (Second) of Judgments § 25 comment c (1982); F. James and G. Hazard, Civil Procedure, § 11.13 at 557 (2d ed. 1977). . Annot., 24 A.L.R. 4th 646, 650 (1983). See Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex. 1963); Southern Pacific Transport Co. v. State Farm Mut. Ins. Co., 480 S.W.2d 59 (Tex. Civ.App.1972); Garrett v. Mathews, 343 S.W.2d 289 (Tex.Civ.App.1961). . See, e.g., Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1327-28 (5th Cir.1985). . Texaco Country Club v. Wade, 163 S.W.2d 219, 223 (Tex.Civ.App.—Galveston 1942), no writ. . E.g., Houston & T.C. Ry. Co. v. Fox, 106 Tex. 317, 320, 166 S.W. 693, 695 (1914). . Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966); Houston & T.C. Ry. Co. v. Fox, 106 Tex. 317, 320, 166 S.W. 693, 695 (1914); Lentz v. City of Dallas, 96 Tex. 258, 267, 72 S.W. 59, 62 (1903); Gibson v. Avery, 463 S.W.2d 277 (Tex.Civ.App.—Fort Worth 1970) no writ. See also the following decisions of federal courts applying Texas law: Whitten v. Liberty Mutual Ins. Co., 257 F.2d 699 (5th Cir. 1958); Fort Worth & Denver R. Co. v. Janski, 223 F.2d 704, 707 (5th Cir.1955); Fort Worth & Denver City R. Co. v. Smith, 206 F.2d 667, 670 (5th" }, { "docid": "16458703", "title": "", "text": "and avoid ground impact. 6:05:52 Initial touchdown while DL 191 was still in heavy rain. 6:05:56 Gene Skipworth instructs Delta Flight 191: “Delta go around.” IV. APPLICABLE LAW 1. These actions are brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. 2. Jurisdiction and venue properly lie with this Court under 28 U.S.C. § 1346(b) and 28 U.S.C. § 1402(b), respectively. 3. Texas law applies to determine the rights and liabilities of the parties. 28 U.S.C. § 2674. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Brooks v. United States, 695 F.2d 984 (5th Cir.1983). See Opinion filed by this Court on September 22, 1986. 4. Parties who asserted that the air traffic controller’s negligent conduct was a substantial cause of crash of aircraft during landing have the burden of persuasion. Delta Air Lines, Inc. v. U.S., 561 F.2d 381 (1st Cir.1977). 5. Under Texas law, liability of the United States for negligence allegedly causing an aircraft accident is to be determined by the ordinary rules of negligence and due care. American Airlines, Inc. v. United States, 418 F.2d 180, 191 (5th Cir.1969); United States v. Schultetus, 277 F.2d 322, 325 (5th Cir.1960), cert. denied, 364 U.S. 828, 81 S.Ct. 67, 5 L.Ed.2d 56 (1960); Associated Aviation Underwriters v. United States, 462 F.Supp. 674, 681 (N.D.Tex.1978). Brooks v. United States, 695 F.2d 984 (5th Cir.1983). 6. Under Texas law, a plaintiff has the burden of establishing each of three essential elements of actionable negligence. The elements are as follows: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from such breach. Atchison, Topeka & Santa Fe Ry. v. Standard, 696 S.W.2d 476, 478 (Tex.App.1985); Gray v. Baker and Taylor Drilling Co., 602 S.W.2d 64, 65 (Tex.Civ.App.1980); Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976). 7. Whether or not a legal duty exists under a given set of facts is essentially a question of law to be determined by the Court. Gray v. Baker and Taylor" }, { "docid": "12509980", "title": "", "text": "of the standard set by § 6103 regarding Johnson's right to privacy vis-a-vis his taxpayer information was at least negligent behavior by Stone and Sassen. . 828 F.2d 278, 282 (5th Cir.1987). .614 F.2d 464 (5th Cir.1980). . Id. at 466; see, e.g., In re Air Crash at Dallas/Fort Worth Airport, 720 F.Supp. 1258, 1288 (N.D.Tex.1989) (relying on federal regulations— specifically the Federal Air Traffic Control Manual and FAA Order 7110.65D — for the standard of care under Texas tort law), aff'd, 919 F.2d 1079 (5th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). . 324 F.2d 622 (5th Cir.1963). . 901 F.2d 53 (5th Cir.1990). . Id. at 56. . See Smith, 324 F.2d at 624-25. . 28 U.S.C. § 1346(b). . Texas, as does most other states, recognizes the traditional torts of libel, slander, defamation, and malpractice. Liability is imposed on private actors when one who is entrusted with such information (e.g., lawyers, psychiatrists, \"insider” investment bankers, and under some circumstances, even reporters and editors) is under a statutory or regulatory mandate to maintain such confidences and yet he or she discloses that confidence. As the dissent rightly points out, § 2680(h) retains governmental immunity for libel and slander. We do not, however, rewrite the statute by pointing to analogous situations in state law in which private actors can be held liable for wrongful disclosure of confidential information. In another analogous situation, only the federal government can be held liable regarding air traffic controllers — liability that is made com-pensable under the FTCA — and their actions are regulated almost exclusively by federal rules and statutes. But, as the attorneys in the Aviation department of the Department of Justice's Torts Branch will attest, an FTCA action certainly lies for an alleged state law tort action when a federal air traffic controller is accused of negligence. . 28 U.S.C. § 6103(n). . Cf. Wiemerslage v. United States, 838 F.2d 899, 902 (7th Cir.1988) (illustrating that nongovernmental employees are sometimes given access to confidential tax return information). . Our research reveals only four cases in which" }, { "docid": "12509979", "title": "", "text": "(9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). . 854 F.2d 335, 338 (9th Cir.1988), cert. denied, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). . See Rodgers v. Hyatt, 697 F.2d 899, 906 (10th Cir.1983); see also Chandler v. United States, 887 F.2d 1397, 1397-98 (10th Cir.1991) (following Rodgers v. Hyatt). . Thomas v. United States, 890 F.2d 18, 20-21 (7th Cir.1989). . See id. .The only reference during the proceeding about Johnson’s job was the court’s remark that \"arrangements can be made to relax [the terms of Johnson's parole] to the extent that they will not interfere with the performance of [Johnson’s] position as an executive for the American National Insurance Company.\" . 760 F.Supp. at 1229-30. . Id. at 1222. . Id. at 1233 (emphasis added). . Again, we restate that we do not decide whether the presence of information in a public record would shield the release of the information from being a § 6103 violation. We only decide that the wanton disregard of the standard set by § 6103 regarding Johnson's right to privacy vis-a-vis his taxpayer information was at least negligent behavior by Stone and Sassen. . 828 F.2d 278, 282 (5th Cir.1987). .614 F.2d 464 (5th Cir.1980). . Id. at 466; see, e.g., In re Air Crash at Dallas/Fort Worth Airport, 720 F.Supp. 1258, 1288 (N.D.Tex.1989) (relying on federal regulations— specifically the Federal Air Traffic Control Manual and FAA Order 7110.65D — for the standard of care under Texas tort law), aff'd, 919 F.2d 1079 (5th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). . 324 F.2d 622 (5th Cir.1963). . 901 F.2d 53 (5th Cir.1990). . Id. at 56. . See Smith, 324 F.2d at 624-25. . 28 U.S.C. § 1346(b). . Texas, as does most other states, recognizes the traditional torts of libel, slander, defamation, and malpractice. Liability is imposed on private actors when one who is entrusted with such information (e.g., lawyers, psychiatrists, \"insider” investment bankers, and under some circumstances, even reporters and editors) is under a statutory" }, { "docid": "12509989", "title": "", "text": "(8th Cir.1979) (“... federally imposed obligations, whether general or specific, are irrelevant to our inquiry under the FTCA, unless state law imposes a similar obligation upon private persons”). Our Court has long followed this rule. United States v. Smith, 324 F.2d 622, 624-25 (5th Cir.1963) (the FTCA “simply cannot apply where the claimed negligence arises out of the failure of the United States to carry out a [federal] statutory duty in the conduct of its own affairs” and is unavailable where “[t]he existence or nonexistence of” the claim “depends entirely upon Federal statute”); Brown; Tindall v. United States, 901 F.2d 53, 56 at n. 8 (5th Cir.1990) (“a federal regulation cannot establish a ' duty owed to the plaintiff under state law,” citing Smith). See also Bosco v. U.S. Army Corps of Engineers, 611 F.Supp. 449, 454 (N.D.Tex.1985). This is not to say that the required state law must be one directly applicable to the conduct of federal employees or to the precise activity from which the claim arose. The Supreme Court made this clear in Indian Towing Co. v. United States, 350 U.S. 61, 63-64, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955), where it relied on the “under like circumstances” language of section 2674 in holding that the United States could be liable under the FTCA for the Coast Guard’s negligence in the operation of its lighthouse, asserting “it is hornbook tort law that one who undertakes to warn the public of a danger and thereby induces reliance must perform his ‘good Samaritan’ task in a careful manner.” See also Block v. Neal, 460 U.S. 289, 293, 103 S.Ct. 1089, 1092, 75 L.Ed.2d 67 (1983). Although Indian Towing did not expressly refer to state law, subsequent decisions have made plain that in FTCA cases “the application of the ‘Good Samaritan’ doctrine is at bottom a question of state law.” United States v. S.A. Impresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 815 n. 12, 104 S.Ct. 2755, 2765 n. 12, 81 L.Ed.2d 660 (1984). See also Sheridan v. United States, 487 U.S. 392, 400, 108" }, { "docid": "19848360", "title": "", "text": "primary basis for federal government regulation of the nuclear industry. A Guide to Toxic Torts (MB), § 36.03[5](b), at 36-55 (1995). . For other cases in which courts have used the chapter 20 permissible radiation levels as the standard of care in suits by nuclear plant employees, see Coley v. Commonwealth Edison Co., 768 F.Supp. 625 (N.D.Ill.1991) (granting summary judgment to defendant nuclear power plant because “the NRC regulations [specifically, § 20.102(b) ] are determinative of the standard of care in occupational exposure cases”); Whiting v. Boston Edison Co., No. 88-2125 (D.Mass. Sept. 5, 1991) (\"ITJhe Federal Permissible Dose Standard constitutes the duty of care owed to the decedent in this case.”); Jurka v. Commonwealth Edison Co., No. 88-C-7852 (N.D.Ill. Aug. 9, 1990) (granting summary judgment against worker because plant did not exceed regulatory levels of exposure permitted by § 20.101(b)). None of these cases discusses or applies ALARA. But see Silkwood v. Kerr-McGee Corp., 485 F.Supp. 566, 580-83 (W.D.Okla.1979) (holding state law not inconsistent with, and therefore not preempted by, federal radiation standards, including ALARA), aff'd in part, rev'd in part, 667 F.2d 908 (10th Cir.1981), rev’d, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). . The Restatement (Second) of Torts expressly provides that, in certain situations, a \"court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation.” Restatement (Second) of Torts § 286 (1965); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36, at 220 (5th ed. 1984) (citing numerous cases) (\"When a statute provides that under certain circumstances particular acts shall be done or not done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate. The same may be true of ... regulations of administrative bodies.”). We believe it appropriate to adopt §§ 20.105 and 20.106 as the standard of conduct in this situation. As one commentator noted: The element of breach of duty is a critical issue in the adjudication of radiation" }, { "docid": "12509981", "title": "", "text": "or regulatory mandate to maintain such confidences and yet he or she discloses that confidence. As the dissent rightly points out, § 2680(h) retains governmental immunity for libel and slander. We do not, however, rewrite the statute by pointing to analogous situations in state law in which private actors can be held liable for wrongful disclosure of confidential information. In another analogous situation, only the federal government can be held liable regarding air traffic controllers — liability that is made com-pensable under the FTCA — and their actions are regulated almost exclusively by federal rules and statutes. But, as the attorneys in the Aviation department of the Department of Justice's Torts Branch will attest, an FTCA action certainly lies for an alleged state law tort action when a federal air traffic controller is accused of negligence. . 28 U.S.C. § 6103(n). . Cf. Wiemerslage v. United States, 838 F.2d 899, 902 (7th Cir.1988) (illustrating that nongovernmental employees are sometimes given access to confidential tax return information). . Our research reveals only four cases in which § 6103(n) was mentioned, none of which are relevant to the instant case. See Wiemerslage, 838 F.2d at 902; Ungaro v. Desert Palace, Inc., 732 F.Supp. 1522 (D.Nev.1989); Crismar Corp. v. United States, 1989 WL 98843 (E.D.La.1989); Crown Cork & Seal Co. v. Pennsylvania Human Relations Comm'n, 463 F.Supp. 120 (E.D.Penn.1979). We believe it is clear, however, that a \"private individual under like circumstances” could be held liable under Texas tort law for a violation of the protections afforded to taxpayers by § 6103. . In re Air Crash at Dallas/Fort Worth Airport, 919 F.2d 1079, 1085 (5th Cir.) (citing Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), and 53 Tex.Jur.3d, Negligence § 129), cert. denied, — U.S. -, 112 S.Ct. 276, 116 L.Ed.2d 228 (1991). .We are not in a position to speculate what information would have been omitted from the press release to cause a different result (what information was critical to damage Johnson). It is at least conceivable that if a press release had been issued containing" }, { "docid": "12509978", "title": "", "text": "Law of Federal Income Taxation: Tax Reform Act of 1976 Analysis 117-25 (James J. Doheny ed., 1977). . In Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.1972), the Texas Supreme Court approved the Restatement (Second) of Torts § 288A as substantially stating Texas law concerning civil liability for violation of a penal statute. Section 288A provides five categories of situations where a statutory violation is excused. They are: (a) the violation is reasonable because of the actor’s incapacity; (b) the actor neither knows nor should know of the occasion for compliance; (c) the actor is unable after reasonable diligence or care to comply; (d) the actor is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others. Id.; see O & A Express, 630 S.W.2d at 636 n. 4. . 26 U.S.C. § 6103(b)(2)(A). . Id. § 6103(b)(6). . See, e.g., id. § 6103(h)(4). . See William E. Schrambling Accountancy Corp. v. United States, 937 F.2d 1485, 1488-89 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 956, 117 L.Ed.2d 123 (1992). . 854 F.2d 335, 338 (9th Cir.1988), cert. denied, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). . See Rodgers v. Hyatt, 697 F.2d 899, 906 (10th Cir.1983); see also Chandler v. United States, 887 F.2d 1397, 1397-98 (10th Cir.1991) (following Rodgers v. Hyatt). . Thomas v. United States, 890 F.2d 18, 20-21 (7th Cir.1989). . See id. .The only reference during the proceeding about Johnson’s job was the court’s remark that \"arrangements can be made to relax [the terms of Johnson's parole] to the extent that they will not interfere with the performance of [Johnson’s] position as an executive for the American National Insurance Company.\" . 760 F.Supp. at 1229-30. . Id. at 1222. . Id. at 1233 (emphasis added). . Again, we restate that we do not decide whether the presence of information in a public record would shield the release of the information from being a § 6103 violation. We only decide that the wanton disregard" }, { "docid": "23533341", "title": "", "text": "a duty is the threshold question in a negligence action,” id. at 377 (footnote omitted), and that “[ijnstead of creating a duty on the part of the IRS toward Johnson (as found by the district court and as initially found by this panel’s majority), § 6103 simply establishes a standard of care applicable to the independently existing duty to refrain from publicizing damaging or embarrassing private facts about another person.” Id. at 378. The opinion further held that “Texas recognizes an invasion of privacy cause of action for public disclosure of private facts,” id. at 373, and, despite the fact that Johnson did not so contend before this Court, went on to hold “that the district court erred in not holding for Johnson on his public disclosure cause of action.” Id. at 376. The panel majority did not modify any of its other previous holdings and ultimately reached the same result as it had originally. We took the case en banc, thus vacating the panel opinions. Discussion FTCA Requires Breach of State Law Duty The FTCA, subject to several exceptions, waives the sovereign immunity of the United States, making it liable in tort “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, for certain damages “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) (emphasis added). While as a matter of abstract linguistics the phrase “law of the place where the act or omission occurred” might be thought to include generally applicable federal law, it has long been settled that it does not, and that “the liability of the United States under the Act [FTCA] arises only when the law of the state would impose it.” Brown v. United States, 653 F.2d 196, 201 (5th Cir.1981). Thus, even a" } ]

[ { "docid": "22974921", "title": "", "text": "selective excitation and selective ejection [i.e., resonance ejection].” Joint App. at A2034 (emphasis added). The portions of this testimony that we have emphasized show that Jefferts’ testimony was far from unequivocal. In the end, Jefferts as much as admitted that Figure 2 might disclose a set-up for performing either resonance or nonresonance ejection. The mere possibility that Figure 2 might be understood by one of skill in the art to disclose nonresonance ejection is insufficient to show that it is inherently disclosed therein. See Continental Can, supra. As such, because one skilled in the art would not necessarily recognize that nonresonance ejection is disclosed in the Jefferts article, the evidence is not clear and convincing that the Jefferts article inherently anticipates claims 1 and 8. 2. Jefferts’Alleged Public Use The law has long looked with disfavor upon invalidating patents on the basis of mere testimonial evidence absent other evidence that corroborates that testimony. The Supreme Court recognized over one hundred years ago that testimony concerning invalidating activities can be “unsatisfactory” due to “the forgetfulness of witnesses, their liability to mistakes, their proneness to recollect things as the party calling them would have them recollect them, aside from the temptation to actual perjury.” The Barbed-Wire Patent, 143 U.S. 275, 284, 12 S.Ct. 443, 36 L.Ed. 154 (1892). Accordingly, “[witnesses whose memories are prodded by the eagerness of interested parties to elicit testimony favorable to themselves are not usually to be depended upon for accurate information,” and therefore such testimony rarely satisfies the burden upon the interested party, usually the accused infringer, to prove invalidity by clear and convincing evidence. See id. Mere testimony concerning invalidating activities is received with further skepticism because such activities are normally documented by tangible evidence such as devices, schematics, or other materials that typically accompany the inventive process. See Woodland Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1373, 47 U.S.P.Q.2d 1363, 1367 (Fed.Cir.1998) (noting that the skepticism with which mere testimony of invalidating activity is received is “reinforced, in modern times, by the ubiquitous paper trail of virtually all commercial activity. It is rare indeed" } ]

[ { "docid": "2998889", "title": "", "text": "polyurethane backed with a layer of textile material. Huang also acknowledges that the Lau reference is relevant pridr art because' it discloses shock absorbing grips for sports equipment. Similarly, neither party disputes the level of skill in the art. We-thus turn to the third inquiry of the obviousness analysis: the differences between the prior art and the claimed invention. On appeal, Huang again asserts that his invention lies not only in the discovery that improved shock absorption qualities could be obtained by increasing the thickness of the polyurethane layer, but also in drastically reducing the thickness of the textile layer so as to maintain the overall thickness of the prior art grip. While this may accurately describe Huang’s grips, our obviousness analysis focuses on the invention as claimed. Claims 24 and 25 contain no limitation relating to a decrease in the .textile layer so as to maintain an overall thickness of the grip. Instead, the claims merely require polyurethane/textile thickness ratios in excess of those employed in the prior art grips. The admitted prior art, which employs a strip consisting of a polyurethane layer on top of a textile layer, teaches almost all aspects of Huang’s claimed invention. In his specification, Huang states that the prior art grips used the polyurethane layer simply for tackiness. Huang contends that his inventive contribution lies in his discovery that the polyurethane layer, with closed pores aligned normal to the longitudinal axis of the racquet, also absorbs shock. This discovery does not constitute a patentable contribution to the art, however, because Lau also teaches the use of a polyurethane layer to absorb shock. Lau discloses a grip that contains three layers., One layer is made of téxtile material; and a second adjacent layer is made of closed pore polyurethane, with the pores oriented normal to the longitudinal axis of the equipment. Lau teaches that “[t]he impact absorbing capability of the composite laminate derives [in part] from ... the compressible nature of each of the three layers individually.” (Emphasis added.) Therefore, Lau preceded Huang in teaching that a polyurethane layer in a sports grip will" }, { "docid": "21173827", "title": "", "text": "the scope of the '212 patent, the district court found that a person of ordinary skill in the art would find the EMERALD 1997 paper enabling with respect to the invention. Id. The district court clarified that a person of ordinary skill in this art field would have a background in computer science, electrical engineering, or computer engineering as well as knowledge of cyber and internet security. Id. at 630. SRI asserts that the EMERALD 1997 paper is not an enabling disclosure and does not anticipate the claims of the '212 patent because implementing the EMERALD 1997 concepts required extensive and undue experimentation. In particular, SRI points to the declaration of one of the '212 inventors, Mr. Porras, that the 1997 paper was completed just at the outset of the EMERALD project. After the 1997 paper, SRI itself engaged in a great deal of time, effort, and research before achieving a workable system. Dr. Kesidis, SRI’s expert, also explained that the EMERALD 1997 paper was a mere statement of intent to try several prior art techniques and would not have enabled one of ordinary skill in the art to make a functional system. The Defendants respond that one of ordinary skill in the art, without undue experimentation, could have combined the teachings in EMERALD 1997 with general knowledge in the art to practice the invention using any species of the statistical detection method. See Elan Pharm., Inc. v. Mayo Found., 346 F.3d 1051, 1054-55 (Fed.Cir.2003). Furthermore, the Defendants contend that substantial evidence from a number of different sources, including references in the '212 patent, confirmed that statistical detection methods were known in the art and used to analyze network traffic data. See, e.g., Valdes, et ah, “Statistical Methods for Computer Usage Anomaly Detection using NIDES (Next-Generation Intrusion Detection Expert System),” 3rd International Workshop on Rough Sets and Soft Computing, San Jose, CA 1995, 306-11 as listed in the Other Publications section of the '212 patent. In sum, the Defendants contend that a person of ordinary skill in the art was capable of applying a statistical methodology in the analysis of" }, { "docid": "21173825", "title": "", "text": "102(b). “A [patent] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed.Cir.1987). “[SRI] does not argue that the EMERALD 1997 paper fails to disclose each of the limitations of the asserted claims of the '212 patent. Rather, [SRI] asserts that EMERALD 1997 cannot anticipate claim 1 of the '212 patent because it does not provide an enabling disclosure of the claimed invention.” SRI Int’l, Inc., 456 F.Supp.2d at 632. “The standard for enablement of a prior art reference for purposes of anticipation under section 102 differs from the enablement standard under 35 U.S.C. § 112.” Novo Nordisk Pharm., Inc. v. BioTechnology Gen. Corp., 424 F.3d 1347, 1355 (Fed.Cir.2005). “Significantly, [this court has] stated that ‘anticipation does not require actual performance of suggestions in a disclosure. Rather, anticipation only requires that those suggestions be enabled to one of skill in the art.’ ” Id. (internal quote from Bristol-Myers Squibb Co. v. Ben Venue Labs. Inc., 246 F.3d 1368, 1379 (Fed.Cir. 2001)). On summary judgment, the district court found that no reasonable jury could conclude that the EMERALD 1997 paper was a non-enabled “proposal” or an “intent to try” statistical profiling of network traf- fie. SRI Int'l, Inc., 456 F.Supp.2d at 635. The district court “finds the similarity in disclosure between EMERALD 1997 and the specification of the '212 patent convincing with respect to enablement.” Id. at 634. Thus, “if the specification of the '212 patent was sufficient to enable the claims of that patent, so, too, is the description of EMERALD 1997.” Id. (citing In re Epstein, 32 F.3d 1559, 1568 (Fed.Cir.1994)). Besides the similarities between the disclosures, the district court accepted SRI’s broad construction of “statistical detection method” to “encompass [ ] any method of detecting suspicious activity by ‘applying one or more statistical functions’ to analyze network traffic data.” SRI Int'l, Inc., 456 F.Supp.2d at 634. Because SRI asserted that a variety of statistical functions fall within" }, { "docid": "18042897", "title": "", "text": "7 USPQ2d 1057, 1064 (Fed.Cir.1988). As we have already said, Konrad’s failure to monitor the use of his remote database object system, and failure to impose confidentiality agreements on those that used it was enough to place the claimed features of the patents in the public’s possession. Lockwood v. American Airlines, 107 F.3d 1565, 1570, 41 USPQ2d 1961, 1965 (Fed.Cir.1997) (citing In re Epstein, 32 F.3d 1559, 1567-68, 31 USPQ2d 1817, 1823 (Fed.Cir.1994) (“Beyond this ‘in public use or on sale’ finding, there is no requirement for an enablement-type inquiry.”)). Konrad cannot negate this by evidence showing that other, unclaimed aspects, such as the source code, was not publicly available. II. The on-sale bar applies when the invention is the subject of a commercial offer for sale, and is ready for patenting before the critical date. Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). The ready for patenting condition “may be satisfied in at least two ways: by proof of reduction to practice before' the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id. at 67-68, 119 S.Ct. 304. The overriding concern of the on-sale bar is an inventor’s attempt to commercialize his invention beyond the statutory term. STX, LLC v. Brine, Inc., 211 F.3d 588, 590, 54 USPQ2d 1347, 1349 (Fed.Cir.2000). When the asserted basis of invalidity is an on-sale bar, the court should determine “whether the subject of the barring activity met each of the limitations of the claim, and thus was an embodiment of the claimed invention.” Scaltech Inc. v. Retec/Tetra, L.L.C., 178 F.3d 1378, 1383, 51 USPQ2d 1055, 1058 (Fed.Cir.1999). “Only an offer which rises to the level of a commercial offer for sale, one which the other party could make into a binding contract by simple acceptance (assuming consideration), constitutes an offer for sale under [section] 102(b).” Group One, Ltd. v. Hallmark Cards, Inc., 254 F.3d 1041," }, { "docid": "21173830", "title": "", "text": "The issuance itself shows that the specification satisfied the enablement requirements of 35 U.S.C. § 112, ¶ 1. With the 1997 paper providing similar, or even a partially identical, disclosure to the '212 patent specification, the record meets the lower enablement standard for prior art under 35 U.S.C. § 102(b). Thus, the 1997 publication with its similarities in technical scope and description to the specification of the '212 patent meets the enabling hur- dle for a prior art reference. See Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1569 (Fed.Cir.1988) (“The disclosure in Exhibit 5 is at least at the same level of technical detail as the disclosure in the '491 patent. If disclosure of a computer program is essential for an anticipating reference, then the disclosure in the '491 patent would fail to satisfy the enablement requirement of 35 U.S.C. § 112, First ¶.”) Dr. Kesidis’s testimony is not sufficient to overcome the weight of evidence that the EMERALD 1997 paper offers an enabling disclosure for § 102(b). His testimony contains only generalized conclusions without any analysis regarding the alleged differences between the '212 patent disclosure and the EMERALD 1997 paper. In short, Dr. Kesidis just restated SRI’s position. As such, SRI’s only semblance of possible evidence to show a lack of an enabling disclosure in the EMERALD 1997 paper was not sufficient to create a genuine issue of material fact. Therefore, this court affirms the district court’s ruling, as a matter of law, of invalidity of the '212 patent as anticipated by the EMERALD 1997 paper. B. The Live Traffic Paper This court must determine the accessibility to the public of the Live Traffic paper before the critical date. If this paper qualifies as prior art, the parties agree that its disclosure renders the asserted patents (’203, '338, '212, and '615) invalid under 35 U.S.C. § 102(b). The 35 U.S.C. § 102 printed publication bar states: “A person shall be entitled to a patent unless — (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or" }, { "docid": "21173826", "title": "", "text": "(internal quote from Bristol-Myers Squibb Co. v. Ben Venue Labs. Inc., 246 F.3d 1368, 1379 (Fed.Cir. 2001)). On summary judgment, the district court found that no reasonable jury could conclude that the EMERALD 1997 paper was a non-enabled “proposal” or an “intent to try” statistical profiling of network traf- fie. SRI Int'l, Inc., 456 F.Supp.2d at 635. The district court “finds the similarity in disclosure between EMERALD 1997 and the specification of the '212 patent convincing with respect to enablement.” Id. at 634. Thus, “if the specification of the '212 patent was sufficient to enable the claims of that patent, so, too, is the description of EMERALD 1997.” Id. (citing In re Epstein, 32 F.3d 1559, 1568 (Fed.Cir.1994)). Besides the similarities between the disclosures, the district court accepted SRI’s broad construction of “statistical detection method” to “encompass [ ] any method of detecting suspicious activity by ‘applying one or more statistical functions’ to analyze network traffic data.” SRI Int'l, Inc., 456 F.Supp.2d at 634. Because SRI asserted that a variety of statistical functions fall within the scope of the '212 patent, the district court found that a person of ordinary skill in the art would find the EMERALD 1997 paper enabling with respect to the invention. Id. The district court clarified that a person of ordinary skill in this art field would have a background in computer science, electrical engineering, or computer engineering as well as knowledge of cyber and internet security. Id. at 630. SRI asserts that the EMERALD 1997 paper is not an enabling disclosure and does not anticipate the claims of the '212 patent because implementing the EMERALD 1997 concepts required extensive and undue experimentation. In particular, SRI points to the declaration of one of the '212 inventors, Mr. Porras, that the 1997 paper was completed just at the outset of the EMERALD project. After the 1997 paper, SRI itself engaged in a great deal of time, effort, and research before achieving a workable system. Dr. Kesidis, SRI’s expert, also explained that the EMERALD 1997 paper was a mere statement of intent to try several prior art" }, { "docid": "20166061", "title": "", "text": "claims are disclosed, either expressly or inherently, in the Stratakos 1994 Article. Defendants further assert that even if the Court concludes that the Stratakos 1994 Article does not disclose the flip-chip limitation and therefore does not anticipate the Flip-Chip Claims, these claims are obvious, as a matter of law, based on the Stratakos 1994 Article in view of a book edited by John H. Lau entitled “Chip on Board Technologies for Multichip Technologies,” published by Chapman & Hall in 1994 (“Lau Chip on Board Book”). In support of this position, Defendants assert that a person of skill in the art would be motivated to combine the two references because of the known benefits of flip-chip packaging and the widely-known problems associated with wire-bonding. Further, Defendants argue, to the extent that Plaintiff points to disputed facts relating to “secondary considerations” of non-obviousness, this evidence is not sufficient to defeat summary judgment because Volterra has not established a nexus between the claimed invention and the secondary considerations. c. Plaintiffs Anticipation SJ Motion In its Anticipation SJ Motion, Volterra seeks summary judgment that: 1) Sicard does not anticipate the Metalized Pad Claims; 2) the Stratakos 1994 Article does not anticipate the Flip-Chip Claims; and 3) the Stratakos Thesis does not anticipate the Flip-Chip Claims. d.Plaintiffs Obviousness SJ Motion In its Obviousness SJ Motion, Plaintiff seeks summary judgment of non-obviousness on several grounds. First, it asserts that it is entitled to summary judgment that the Flip-Chip Claims are not obvious because Defendants have failed to produce evidence that it would have been obvious to combine flip-chip packaging with an integrated circuit containing a power switch for a voltage regulator, especially in light of undisputed evidence that at the time of the invention, technical challenges and drawbacks associated with the use of flip-chip packaging in an integrated circuit chip including a power switch for a voltage regulator were well-known to those skilled in the art and that the prior art taught away from such a combination. Second, Plaintiff requests summary judgment that for the purposes of obviousness, no reasonable jury could find that the Stratakos" }, { "docid": "21173824", "title": "", "text": "summary judgment of invalidity as to the Live Traffic paper and the EMERALD 1997 paper. This court has jurisdiction under 28 U.S.C. § 1295(a)(1). II This court reviews a district court’s grant of summary judgment without deference, reapplying the same standard as the district court. Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1377 (Fed.Cir.2006). “Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).” Id. “Whether an anticipatory document qualifies as a ‘printed publication’ under § 102 is a legal conclusion based on underlying factual determinations.” Cooper Cameron Corp. v. Kvaerner Oilfield Prods., 291 F.3d 1317, 1321 (Fed.Cir.2002). A. EMERALD 1997 As a matter of law, this court must review the decision that the EMERALD 1997 publication disclosed sufficient information to enable use of this prior art to invalidate the '212 patent. The trial court determined that the EMERALD 1997 paper anticipated the '212 patent, rendering the patent invalid under 35 U.S.C. § 102(b). “A [patent] claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed.Cir.1987). “[SRI] does not argue that the EMERALD 1997 paper fails to disclose each of the limitations of the asserted claims of the '212 patent. Rather, [SRI] asserts that EMERALD 1997 cannot anticipate claim 1 of the '212 patent because it does not provide an enabling disclosure of the claimed invention.” SRI Int’l, Inc., 456 F.Supp.2d at 632. “The standard for enablement of a prior art reference for purposes of anticipation under section 102 differs from the enablement standard under 35 U.S.C. § 112.” Novo Nordisk Pharm., Inc. v. BioTechnology Gen. Corp., 424 F.3d 1347, 1355 (Fed.Cir.2005). “Significantly, [this court has] stated that ‘anticipation does not require actual performance of suggestions in a disclosure. Rather, anticipation only requires that those suggestions be enabled to one of skill in the art.’ ” Id." }, { "docid": "1234674", "title": "", "text": "a person comes to the patent with the knowledge of what has come before. Placed in that context, it is unnecessary to spell out every detail of the invention in the specification; only enough must be included to convince a person of skill in the art that the inventor possessed the invention and to enable such a person to make and use the invention without undue experimentation. 424 F.3d 1336, 1345 (Fed.Cir.2005) (citing Union Oil Co. v. Atl. Richfield Co., 208 F.3d 989, 997 (Fed.Cir.2000); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed.Cir.1995)). 2. Actual Reduction to Practice Is Not Required As we explained in Capon v. Eshhar, “[t]he ‘written description’ requirement implements the principle that a patent must describe the technology that is sought to be patented; the requirement serves both to satisfy the inventor’s obligation to disclose the technologic knowledge upon which the patent is based, and to demonstrate that the patentee was in possession of the invention that is claimed.” 418 F.3d 1349, 1357 (Fed.Cir. 2005). The Board was correct, however, not to view as dispositive that Inglis had not actually produced a poxvirus vaccine, because an actual reduction to practice is not required for written description. See Univ. of Rochester v. G.D. Searle & Co., 358 F.3d 916, 926 (Fed.Cir.2004) (“We of course do not mean to suggest that the written description requirement can be satisfied only by providing a description of an actual reduction to practice. Constructive reduction to practice is an established method of disclosure .... ”). Rochester, moreover, is consistent with Supreme Court precedent. In the context of interpreting 35 U.S.C. § 102(b), the Court held that “[t]he word ‘invention’ must refer to a concept that is complete, rather than merely one that is ‘substantially complete.’ ” Pfaff v. Wells Elecs., 525 U.S. 55, 66, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). It then proceeded to make clear that although “reduction to practice ordinarily provides the best evidence that an invention is complete.... it does not follow that proof of reduction to practice is necessary in every case.” Id. (emphasis added). Thus," }, { "docid": "2216209", "title": "", "text": "be considered on sale within the meaning of § 102(b) of the Patent Act. In the seminal case of Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 59, 119 S.Ct. 304, 142 L.Ed.2d 261, 48 USPQ2d 1641, 1646-47 (1998), the patentee sued a competitor for infringement of his patent for a computer chip socket. The issue was whether the commercial marketing of the socket began the one-year period for purposes of an on sale bar, even though Pfaff s invention had not yet been reduced to practice. Id. The court held that there was no requirement that the invention actually have been re duced to practice. Instead, the Court outlined a two-part test that an invention must satisfy in order for the on sale bar to apply. “First, the product must be the subject of a commercial offer for sale.... Second, the invention must be ready for patenting. [The second] condition may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id. The Court affirmed this court’s decision that the patent was invalid under § 102(b) because Pfaffs acceptance of a purchase order from a manufacturer prior to the critical date proved that a commercial offer for sale had been made and because the invention was ready for patenting as proved by the manufacturer’s ability to produce the invention from the detailed drawings provided by Pfaff. Id. at 67-68, 119 S.Ct. 304. 1. Commercial Offer for Sale of Patented Invention Under Pfaff, the first step in our analysis is determining whether there was a commercial offer for sale of the patented invention. This first step has two sub-parts. We must find that there was a “commercial offer” and that it was an offer of the patented invention. While neither party argues the question, we think the fact that the process itself was not offered for sale" }, { "docid": "23318203", "title": "", "text": "patent. B. The on-sale bar Under 35 U.S.C. § 102(b), a patent is invalid by reason of the on-sale bar if “the invention was ... on sale in this country ... more than one year prior to the date of application for the patent in the United States.” 35 U.S.C. § 102(b). In Pfaff v. Wells Electronics., Inc., 525 U.S. 55, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998), the Supreme Court held that the on-sale bar applies when two conditions are met before the critical date, which in this case is February 28, 1994. First, “the product must be the subject of a commercial offer for sale.” Id. at 66, 119 S.Ct. at 311. Second, “the invention must be ready for patenting.” Id. at 67, 119 S.Ct. at 312. The Court explained that the second condition may be satisfied in at least two ways: “by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id. at 67, 119 S.Ct. at 312 (footnote omitted). At the time the district court ruled on Blok-Lok’s motion for summary judgment, the Supreme Court had not yet decided Pfaff. In concluding that the on-sale bar applied, the court started from the premise that the invention of the ’801 patent was set' forth in the ’93 brochure. See Helifix, 26 F.Supp.2d at 302, 52 USPQ2d at 1493. Turning to \"the on-sale issue, the court stated that the ’93 brochure provided “very strong circumstantial evidence that the ‘DryFix’ method was being made available for sale” in January of 1993 at the World of Concrete trade show. Id., 52 USPQ2d at 1492. The court further stated that nothing in the ’93 brochure indicated that the methods, tools, and apparatus described in the brochure were unavailable for sale, and it noted that a statement on the back of the brochure that “Helifix ties have been subjected to extensive testing in a wide range" }, { "docid": "14810309", "title": "", "text": "to a patent unless ... the invention was ... on sale in this country, more than one year prior to the date of application for patent in the United States.” 35 U.S.C. § 102(b) (2002). To trigger the on-sale bar under Section 102(b), the alleged infringer must prove that the product sold “fully anticipated the claimed invention or would have rendered the claimed invention obvious by its addition to the prior art.” Allen Eng. Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1352 (Fed.Cir.2002) (quoting Tec Air, Inc. v. Denso Mfg. Mich., Inc., 192 F.3d 1353, 1358 (Fed.Cir.1999)). Therefore, an accused infringer must show that the product offered for sale “embodied all of the limitations of that claim or would have rendered that claim obvious.” Allen, 299 F.3d at 1352. In addition, the accused infringer must establish by clear and convincing evidence that before the critical date the product was (1) the subject of a commercial offer for sale, and (2) that the invention was ready for patenting. See Pfaff v. Wells Elecs., 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). Under the first prong of Pfaff, courts should determine whether there has been a commercial offer for sale by “applying traditional contract law principles.” Allen, 299 F.3d at 1352. The second prong of Pfaff “may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Pfaff, 525 U.S. at 67-68, 119 S.Ct. 304. 2. The Parties’ Contentions Defendants contend that Plaintiffs sold an embodiment of the '516 patent before the June 13, 1994 critical date and that the patent is thus invalid pursuant to the on-sale bar of 35 U.S.C. § 102(b). Specifically, Defendants contend that Plaintiffs provided manufacturer Francosmetics International, Inc. (“Francosmetics”) with a moisturizer formulation sheet and processing instructions describing how to prepare a preferred embodiment of the '516 patent. (D.I." }, { "docid": "20166114", "title": "", "text": "Lau Chip on Board Book and the Lau Flip Chip Book. In support of their assertion that the disclosure of flip chip in the Stratakos 1994 Article is enabled, Defendants cite to In re Donohue, 766 F.2d 531, 534 (Fed.Cir.1985) and Bristol-Myers Squibb Co. v. Ben Venue Laboratories, 246 F.3d 1368 (Fed.Cir.2001). In In re Donohue, the Federal Circuit affirmed a final rejection of a pat-. ent applicants’ claims on the basis of anticipation, rejecting the applicants’ assertion that a prior art reference disclosing a compound did not anticipate because the compound had not actually been made by the authors of the prior art. 766 F.2d at 533. In Bristol-Myers Squibb Co., the patent involved a method for administering an anti-tumor drug to cancer patients following premedication to reduce hypersensitivity reaction. 246 F.3d at 1378. The Federal Circuit affirmed the district court’s grant of summary judgment of anticipation even though the anticipating prior art did not describe the premedication process because numerous other references described how this was accomplished. Id. at 1379. The Court finds that the facts of this case are akin to those of Invpax and Forest Laboratories. In particular, nothing in the Stratakos 1994 Article or the extrinsic evidence cited by Defendants explains how the problems associated with use of flip chip in high currency/ high temperature applications, of which Plaintiff has presented extensive evidence, could be mitigated. Thus, this prior art, even considered in light of the extrinsic evidence cited by Defendants, fails to disclose “within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed.Cir.2008). Donohue and Bristol-Myers Squibb Co. are distinguishable because in those cases, the extrinsic evidence described how the missing steps were accomplished. The mere fact that flip chip existed at the time of the invention is not sufficient to establish that the authors of the Stratakos 1994 Paper had possession of the invention or that a person skilled in" }, { "docid": "13190864", "title": "", "text": "and in any event Rollar admitted on the record that he had reduced the invention to practice prior to the execution of that agreement. Id. at 45. Rollar thereafter filed a request for rehearing, which resulted in the Board issuing two additional opinions clarifying its rationale for affirming the examiner’s rejection of claims 1 through 17. In re Kollar, No. 96-C-7375 (BPAI Feb. 28, 2001); Kollar III. In Kollar III, the Board further explained its rationale for concluding that the Celanese Agreement barred Rollar from obtaining a patent to the claimed process as follows: [A]n embodiment of a claimed process can be physically represented by a written description in a document which not only identifies the process but also enables the practice of that chemical process by one of ordinary skill in the art .... [T]he preponderance of the evidence shows that appellant ... transferred documents containing a written description of the claimed process ... [and] thus commercially exploited] the claimed chemical process.... Kollar III, slip op. at 8, 9 (emphases added). Rollar appeals from the Board’s final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A). DISCUSSION Section 102(b) provides in relevant part that “[a] person shall be entitled to a patent unless ... the invention was ... on sale in this country, more than one year prior to the date of the application for patent in the United States....” 35 U.S.C. § 102(b) (1994). The Supreme Court established a two-prong test governing the application of the on-sale bar: “First, the product must be the subject of a commercial offer for sale.... Second, the invention must be ready for patenting.” Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). The PTO bears the initial burden of demonstrating that the preponderance of the evidence establishes, prima facie, facts supporting the conclusion that the claimed invention was on sale within the meaning of § 102(b). In re Brigance, 792 F.2d 1103, 1107, 229 USPQ 988, 990 (Fed.Cir.1986). Whether an invention is “on sale” within the meaning of § 102(b) is a question of" }, { "docid": "14810310", "title": "", "text": "55, 67, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998). Under the first prong of Pfaff, courts should determine whether there has been a commercial offer for sale by “applying traditional contract law principles.” Allen, 299 F.3d at 1352. The second prong of Pfaff “may be satisfied in at least two ways: by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Pfaff, 525 U.S. at 67-68, 119 S.Ct. 304. 2. The Parties’ Contentions Defendants contend that Plaintiffs sold an embodiment of the '516 patent before the June 13, 1994 critical date and that the patent is thus invalid pursuant to the on-sale bar of 35 U.S.C. § 102(b). Specifically, Defendants contend that Plaintiffs provided manufacturer Francosmetics International, Inc. (“Francosmetics”) with a moisturizer formulation sheet and processing instructions describing how to prepare a preferred embodiment of the '516 patent. (D.I. 126 at 11.) Defendants further allege that after Francosmetics manufactured such moisturizing formulations, Plaintiffs sold it to two distributors, Baxter Scientific Products (“Baxter”) and Paxxis, Inc. (“Paxxis”). (Id. at 13-14.) In response, Plaintiffs assert that the moisturizer they sold to Baxter and Paxxis was contaminated. Because of this contamination, Plaintiffs contend, the moisturizer did not contain “an amount of triclosan effective to kill microorganisms on the skin,” a limitation of both Claims 1 and 12 of the '516 patent. (D.I. 160 ¶ 3.) Thus, according to Plaintiffs, the moisturizer they sold did not trigger the on-sale bar because it did not meet this limitation of Claims 1 and 12. In addition to Francosmetics’s alleged inability to produce an embodiment of the moisturizer, Plaintiffs claim that two other manufactures, Libby Laboratories and Gordon Laboratories, were also unable to produce an embodiment of the moisturizer prior to June 13, 1994. (Id. at ¶ 9.) These additional episodes, Plaintiffs contend, demonstrate that they not only failed to sell an embodiment of the claimed invention, but that their invention" }, { "docid": "9776171", "title": "", "text": "(Fed.Cir.1995). To prove that the Swin patents are invalid for violating the on-sale bar, Denso “must demonstrate by clear and convincing evidence that there was a definite sale or offer to sell more than one year before the application for the subject patent, and that the subject matter of the sale or offer to sell fully anticipated the claimed invention or would have rendered the claimed invention obvious by its addition to the prior art.” Id. (internal quotations omitted); see also Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 119 S.Ct. 304, 311, 142 L.Ed.2d 261 (1998) (“First, the product must be the subject of a commercial offer for sale.”); Scaltech Inc. v. Retec/Tetra, L.L.C., 178 F.3d 1378, 1383, 51 USPQ2d 1055, 1058 (Fed.Cir.1999) (“[T]he first determination in the § 102(b) analysis must be whether the subject of the barring activity met each of the limitations of the claim, and thus was an embodiment of the claimed invention.”). If this subject matter anticipates the claimed invention or would have rendered it obvious, the invention itself must also have been “ready for patenting” at the time of the offer or sale — e.g., the invention must have been reduced to practice or embodied in “drawings or other descriptions ... that [are] sufficiently specific to enable a person skilled in the art to practice the invention.” Pfaff, 119 S.Ct. at 312. Denso claims that Tec Air offered the invention for sale on June 26, 1974 to Keeprite and on August 14, 1974 to Howard Industries, both prior to the critical date of September 24, 1974. According to Tec Air, although it ultimately shipped fans made according to the invention to these customers, it did not specify the balancing technique in its offers and it did not intend to use the patented one when it made the offers. Viewing the evidence in the light most favorable to Tec Air, we hold that the jury reasonably could have found that Tec Air’s offers to Keeprite and Howard Industries did not raise the on-sale bar because the subject matter of these offers does not fully" }, { "docid": "4484726", "title": "", "text": "II. Invalidity We turn now to the issue of Sundst-rand’s counterclaims for invalidity. Sundstrand argues that the asserted claims of the '893 and '194 patents are invalid under the on-sale bar, anticipated and obvious. Since the ultimate issue of validity was submitted to the jury, we assume that all underlying factual issues were resolved in favor of the verdict winner. Hewlett-Packard, 340 F.3d at 1325. We review the jury’s factual determinations for substantial evidence. Id.; Minn. Mining & Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1305 (Fed.Cir.2002). Substantial evidence supports the jury’s conclusion that the claims at issue were not invalid under the on-sale bar. Under Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998), the on-sale bar cannot arise unless the invention was (1) the subject of a commercial offer for sale and (2) “ready for patenting” prior to the critical date. Id. at 67, 119 S.Ct. 304. An invention is ready for patenting if it was “re-ducted] to practice before the critical date; or [if] prior to the critical date the inventor had prepared drawings or other descriptions of the invention that were sufficiently specific to enable a person skilled in the art to practice the invention.” Id. at 67-68, 119 S.Ct. 304. Here Sundstrand urges that certain drawings, substantially identical to those in the '893 and '194 patents, prove that Honeywell’s invention was ready for patenting prior to the critical date. Honeywell disagrees. Its expert, Mr. Muller, testified that the drawings relied upon by Sundstrand would not allow “any engineer that [he] kn[ew] of with any amount of experience, to simply take [those drawings] and go off and design a surge control system” because “the details and the operation of the figures themselves are of little or no use in being able to discern how the system operates.” (J.A. at 16613-14.) The jury was entitled to resolve the conflicting evidence in favor of Honeywell, Bio-Tech. Gen. Corp. v. Genentech, Inc., 267 F.3d 1325, 1330-31 (Fed.Cir.2001), particularly given the heavy burden to establish invalidity by clear and convincing evidence. Thus, we" }, { "docid": "23318202", "title": "", "text": "tie demonstrate that the ’93 brochure need not describe the tool in order to enable the claimed method. The district court interpreted the restriction requirements as reflecting the Patent Office’s determinations that other tools could be devised to prac- ■ tice the method of the ’801 patent. See Helifix, 26 F.Supp.2d at 300-01, 52 USPQ2d at 1491-92. Both Blok-Lok and the district court, however, have read too much into the restriction requirements in this case. The restriction requirements at issue merely reflect the Patent Office’s conclusions that- claim 1, by its terms, is not limited to a. method using the tool recited in claim 2. Accordingly, the restriction requirements between the method claimed in the ’801 patent and the specific tool described, in the specification in no way bear on the enablement of a different tool. Because Blok-Lok did not present any other evidence indicating that the ’93 brochure enables the claimed method, on the record before us there is not clear and convincing evidence that the ’93 brochure anticipates the claim of the ’801 patent. B. The on-sale bar Under 35 U.S.C. § 102(b), a patent is invalid by reason of the on-sale bar if “the invention was ... on sale in this country ... more than one year prior to the date of application for the patent in the United States.” 35 U.S.C. § 102(b). In Pfaff v. Wells Electronics., Inc., 525 U.S. 55, 119 S.Ct. 304, 142 L.Ed.2d 261 (1998), the Supreme Court held that the on-sale bar applies when two conditions are met before the critical date, which in this case is February 28, 1994. First, “the product must be the subject of a commercial offer for sale.” Id. at 66, 119 S.Ct. at 311. Second, “the invention must be ready for patenting.” Id. at 67, 119 S.Ct. at 312. The Court explained that the second condition may be satisfied in at least two ways: “by proof of reduction to practice before the critical date; or by proof that prior to the critical date the inventor had prepared drawings or other descriptions of the invention that" }, { "docid": "20166113", "title": "", "text": "1264. Following a bench trial, the trial court held that the paper did not anticipate the patent because it did not teach one of skill in the art how to make the compound at issue, rejecting the testimony presented by the accused infringer that a person skilled in the art would know how to make the compound. Id. The Federal Circuit affirmed, finding that there was no basis to overturn the district court’s fact finding and noting that the evidence of the patentee “heavily outweighed the evidence” favorable to the accused infringer. Id. “Such evidence includes the failure of various scientists” to make the compound recited in the patent. Id. Defendants counter that a person skilled in the art would have known how to implement the voltage regulator described in the Stratakos 1994 Article in a flip-chip package, citing to the “plethora” of evidence that at the time of the invention flip chip packaging was being used in a wide variety of consumer applications and had been described in widely recognized handbooks, such as the Lau Chip on Board Book and the Lau Flip Chip Book. In support of their assertion that the disclosure of flip chip in the Stratakos 1994 Article is enabled, Defendants cite to In re Donohue, 766 F.2d 531, 534 (Fed.Cir.1985) and Bristol-Myers Squibb Co. v. Ben Venue Laboratories, 246 F.3d 1368 (Fed.Cir.2001). In In re Donohue, the Federal Circuit affirmed a final rejection of a pat-. ent applicants’ claims on the basis of anticipation, rejecting the applicants’ assertion that a prior art reference disclosing a compound did not anticipate because the compound had not actually been made by the authors of the prior art. 766 F.2d at 533. In Bristol-Myers Squibb Co., the patent involved a method for administering an anti-tumor drug to cancer patients following premedication to reduce hypersensitivity reaction. 246 F.3d at 1378. The Federal Circuit affirmed the district court’s grant of summary judgment of anticipation even though the anticipating prior art did not describe the premedication process because numerous other references described how this was accomplished. Id. at 1379. The Court finds" }, { "docid": "1638362", "title": "", "text": "without deference, but subsidiary fact findings, if there are any, for clear error. See id. The Supreme Court recently clarified that a claimed invention is considered to be on sale within the meaning of Section 102(b) if, more than one year before the filing date to which the claim is entitled (the critical date), two conditions are satisfied. First, the product must be the subject of a commercial offer for sale. See Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67, 119 S.Ct. 304, 311, 142 L.Ed.2d 261 (1998). Second, the invention must be ready for patenting. See id., 119 S.Ct. at 312. The ready for patenting requirement represented a departure from our previously articulated “totality of the circumstances” test. See Weatherchem Corp. v. J.L. Clark, Inc., 163 F.3d 1326, 1333, 49 USPQ2d 1001, 1006 (Fed.Cir.1998) (citing pre-Pfaff cases). One way to satisfy this newly articulated requirement is by proof of reduction to practice. See Pfaff, 525 U.S. at 67, 119 S.Ct. at 312. Wal-Mart and the manufacturers argue and the district court held that the ’331 patent is invalid because WalMart placed the accused caulking cartridges on sale prior to the critical date. Vanmoor makes no argument that the precritical date sales were for a non-commercial purpose. He does, however, argue that summary judgment was inappropriate because Wal-Mart and the manufacturers did not meet their burden of proving by clear and convincing evidence that the cartridges that were the subject of the precritical date sales anticipated the claims of the ’331 patent. This appeal does not come to us as a “typical case where the patentee has placed some device on sale prior to the critical date and the accused infringer must demonstrate that this device actually embodied or rendered obvious the patented invention.” Evans Cooling Sys. Inc. v. General Motors Corp., 125 F.3d 1448, 1451, 44 USPQ2d 1037, 1039-40 (Fed.Cir.1997). As was the case in Evans Cooling, the entire basis of the patent infringement claim is Vanmoor’s (the pat-entee’s) contention that the accused cartridges infringe the ’331 patent. See id. Wal-Mart and the manufacturers denied that the accused" } ]

[ { "docid": "345603", "title": "", "text": "A. Bodily injury or Coverage B. Property damage to which this policy applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless false or fraudulent ...” A plausible reading of the clause is that the duty to defend and the duty to indemnify are co-extensive. The insurer agrees to defend suits alleging such bodily injury or property damage; “such” apparently refers to bodily injury or property damage “to which this policy applies.” Courts, however, have not read duty to defend clauses narrowly. The duty to defend has been held to be broader than the duty to indemnify. Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58-9, 188 A.2d 320 (1963). Where the allegations of the complaint against the insured state on their face a claim against the insured to which the policy potentially applies, the insurer must defend the claim. Id.; Zeitz v. Zurich General Accident and Liability Insurance Co., 165 Pa.Super. 295, 67 A.2d 742 (1949). The insurer is obliged to defend the entire claim if some of the allegations in the complaint fall within the terms of coverage and others do not. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959). Davis relies principally on Paragraphs 34 and 38 of National Label’s complaint to show that Liberty Mutual had a duty to defend the claim: “34. Plaintiff avers that said new office and plant facility as constructed by contractor is subject to excessive differential settlement, its floors are cracked and sink and tilt, its walls are cracked, doors bend, and plaintiff’s machinery is becoming displaced; and in addition, dangerous gases which endanger property and life have accumulated under and leak into said plant. 38. Because of defendant’s breaches aforesaid, plaintiff has sustained damages in the amount of $36,933.43, and in addition, will sustain losses in the amount of $1,088,000.00.” These paragraphs allege property damage caused by the insured," } ]

[ { "docid": "6540120", "title": "", "text": "coverage depends upon the existence of facts yet to be determined, the insurer is obliged to provide a defense until such time as those facts are determined, and the claim is narrowed to one patently outside the scope of coverage. Likewise, if some of the allegations in the complaint fall within the terms of coverage and others do not, the insurer is obliged to defend the entire action against the insured. Safeguard Scientifics, Inc. v. Liberty Mutual Insurance Co., supra, 766 F.Supp. at 329 citing, inter alia, C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance Co., 467 F.Supp. 17, 19 (E.D.Pa.1979). Finally, when an insurer seeks to deny coverage'based upon an exclusion in the policy, it is the insurer’s burden to demonstrate that the exclusion applies. Hence, an insurer who refuses to defend a claim potentially within the scope of the policy does so at its own peril. Bracciale v. Nationwide Mutual Fire Insurance Company, 1998 WL 323594 (E.D.Pa.1993) citing Ripepi v. American Insurance Cos., 349 F.2d 300, 303 (3rd Cir.1965); Little v. MGIC Indemnity Corp., 649 F.Supp. 1460, 1466 (W.D.Pa.1986), aff'd, 836 F.2d 789 (3rd Cir.1987). Although similar, the duty of an insurer to indemnify is somewhat more limited than its duty to defend. While the insurer must defend its insured if the complaint alleges conduct that potentially falls within the scope of the policy, it must indemnify its insured only if liability is found for conduct that actually falls within the scope of the policy. Thus, in cases where the complaint alleges both conduct that comes under the policy and conduct that does not, the insurer must defend the entire action, but it need not indemnify its insured if the conduct for which the insured is found hable does not come within the scope of the policy. Bracciale, at 12 citing Pacific Indemnity Co. v. Linn, 766 F.2d 754, 767 (3rd Cir.1985) and Air Products & Chemicals, Inc. v. Hartford Accident & Indemnity Co., 707 F.Supp. 762, 776 (E.D.Pa.1989). See Also: Nationwide Mutual Insurance Co. v. Sedicum, 1993 WL 544414 (E.D.Pa.1993). At bar, the plaintiff relies" }, { "docid": "19048112", "title": "", "text": "defend its insured. This obligation arises whenever allegations against the insured state a claim to which the policy potentially applies even if the allegations are “groundless, false or fraudulent.” Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320 (1963). Clearly the complaint filed by Livezey contains certain allegations and names of certain individual defendants not covered by the Nationwide policy. Although the complaint is not as specific as it might be, taken as a whole it provided sufficient information to put Nationwide on notice that a claim of personal injury, potentially covered by its policy, was being raised against its insured. Livezey’s answers to interrogatories further indicate that the allegations raised in the complaint were likely within the scope of coverage provided by Nationwide’s policy. Nationwide contends that even if it is liable for the defense of the defamation claims, it has no obligation to pay for the defense of the antitrust claim. Under Pennsylvania law, however, once a third party has raised allegations against an insured, which potentially fall within the coverage provided, the insurer is obligated to fully defend its insured until it can confine the possibility of recovery to claims outside the coverage of the policy. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Lee v. Aetna Casualty & Surety Co., 178 F.2d 750, 753 (2d Cir.1949). See also Pittsburgh Plate Glass Co. v. Fidelity and Casualty Co. of N.Y., 281 F.2d 538 (3d Cir.1960). Nationwide has asserted that the district court erred in concluding that the members of the ACBL’s local Conduct and Ethics Committee were covered by its policy. By its terms, the policy extends coverage to “any executive officers, director or stockholder thereof while acting within the scope of his duties as such.” Nationwide policy, Section II, page 2. Based on the evidence presented, the district court found that “[t]he members of the Conduct and Ethics Committee were acting as officers of ACBL in the conduct of the disciplinary proceeding and rendered their decision as part of ACBL’s expected regulatory and disciplinary functions.”" }, { "docid": "4402422", "title": "", "text": "II. DISCUSSION. Plaintiffs filed a complaint in this court on October 15, 1990 while the underlying case was still being tried, claiming breach of contract and seeking a declaratory judgment and damages. The court has subject matter jurisdiction over this diversity action, 28 U.S.C. § 1332 (1982), and is guided by general principles of Pennsylvania insurance law. Thus, the court must read the insurance policy as a whole and construe it according to the plain meaning of its terms. C.H. Heist Caribe Corp. v. American Home Assur. Co., 640 F.2d 479, 481 (3d Cir.1981). A term is ambiguous only if reasonable people, considering it in the context of the entire policy, would differ as to its meaning. United Servs. Auto. Ass’n v. Elitzky, 358 Pa.Super. 362, 369, 517 A.2d 982, 986 (1986). Any such ambiguity must be resolved in favor of the insured because the insurer wrote the policy. Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 587, 152 A.2d 484, 487 (1959). In addition, the intent of the parties must be determined not only from the language of the policy, but from all the surrounding circumstances. Elitzky, 358 Pa.Super. at 369, 517 A.2d at 986. A. Liberty Mutual’s Duty to Defend. 1. The Exclusion for Knowing Falsity. Under Pennsylvania law, the right of plaintiffs to a defense turns on whether the claim stated in the complaint potentially comes within the coverage of the policy. Cadwallader, 396 Pa. at 589, 152 A.2d at 488 (emphasis added). If coverage depends upon the existence of facts yet to be determined, the insurer is obliged to provide a defense “until such time as those facts are determined, and the claim is narrowed to one patently outside of coverage.” C. Raymond Davis & Sons, Inc. v. Liberty Mut. Ins. Co., 467 F.Supp. 17, 19 (E.D.Pa.1979). In addition, an “insurer is obliged to defend the entire claim if some of the allegations in the complaint fall within the terms of coverage and others do not.” Id.; see American Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71, 75 (3d Cir.1985). Thus," }, { "docid": "16524143", "title": "", "text": "the policy so as to avoid ambiguities and give effect to all of its provisions.’” Id. (quoting Little v. MGIC Indem. Corp., 836 F.2d 789, 793 (3d Cir.1987)). However, if the contract’s terms are reasonably susceptible to more than one interpretation, then they must be regarded as ambiguous. Id.; C.H. Heist Caribe Corp., 640 F.2d at 481. “ ‘Ambiguous provisions in an insurance policy must be construed against the insurer and in favor of the insured; any reasonable interpretation offered by the insured, therefore, must control.’ ” Med. Protective Co., 198 F.3d at 104 (quoting McMillan v. State Mut. Life Assurance Co., 922 F.2d 1073, 1075 (3d Cir.1990)). Pennsylvania courts have applied this rule liberally. Id. American Auto. Ins. Co. v. Murray, 658 F.3d 311, 320-21 (3d Cir.2011) (footnote omitted). “The burden is on the insured to establish coverage under an insurance policy.... It is the insurer, however, that bears the burden of establishing the applicability of an exclusion in an insurance contract, and exclusions are always strictly construed against the insurer and in favor of the insured.” Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206-07 (3d Cir.2001) (citations omitted). “When an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The Pennsylvania Supreme Court recently reiterated that: An insurer’s duty to defend is broader than its duty to indemnify. It is a distinct obligation, separate and apart from the insurer’s duty to provide coverage. Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 533 A.2d 1363 (1987). An insurer is obligated to defend its insured if the factual allegations of the complaint on its face encompass an injury that is actually or potentially within the scope of the policy. Id. at 1368 (describing the duty to defend as arising “whenever the complaint filed by the injured party may potentially come within the coverage of the" }, { "docid": "6540119", "title": "", "text": "to defend an insured whenever the complaint filed by the injured party may potentially come within the policy’s coverage and the duty to defend remains with the insurer until the insurer can confine the claim to recovery that is not within the scope of coverage. Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3rd Cir.1985); Britamco Underwriters, Inc. v. Stine, 1992 WL 195378 (E.D.Pa.1992); United Services Automobile Association v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982, 985 (1986), alloc. denied, 515 Pa. 600, 528 A.2d 957 (1987). In determining whether there exists a duty to defend in a given case, the complaint claiming damages must be compared to the policy and a determination made as to whether, if the allegations are sustained, the insurer would be required to pay a resulting judgment. Gene’s Restaurant v. Nationwide, supra, 548 A.2d at 246-247 quoting 7C J. Appelman, Insurance Law and Practice, § 4683, at 42, 50 (1979). See Also: St. Paul Surplus Lines Insurance Co. v. 1401 Dixon’s, Inc., 582 F.Supp. 865, 867 (E.D.Pa.1984). Moreover, if coverage depends upon the existence of facts yet to be determined, the insurer is obliged to provide a defense until such time as those facts are determined, and the claim is narrowed to one patently outside the scope of coverage. Likewise, if some of the allegations in the complaint fall within the terms of coverage and others do not, the insurer is obliged to defend the entire action against the insured. Safeguard Scientifics, Inc. v. Liberty Mutual Insurance Co., supra, 766 F.Supp. at 329 citing, inter alia, C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance Co., 467 F.Supp. 17, 19 (E.D.Pa.1979). Finally, when an insurer seeks to deny coverage'based upon an exclusion in the policy, it is the insurer’s burden to demonstrate that the exclusion applies. Hence, an insurer who refuses to defend a claim potentially within the scope of the policy does so at its own peril. Bracciale v. Nationwide Mutual Fire Insurance Company, 1998 WL 323594 (E.D.Pa.1993) citing Ripepi v. American Insurance Cos., 349 F.2d 300, 303 (3rd Cir.1965); Little v." }, { "docid": "13802066", "title": "", "text": "Corporation, the parent corporation of Bell Atlantic, possessed a commercial general liability (“CGL”) policy issued by Hartford. Bell Atlantic claimed coverage under this policy, as a subsidiary of Bell Atlantic Corporation. The policy was in effect from April 1, 1993 to April 1, 1994. After Bell Atlantic tendered the counterclaim to Hartford, the latter denied coverage. As a result, Bell Atlantic defended itself in the action with STK. That case ultimately settled and this lawsuit followed. Under Pennsylvania law, which all parties agree is applicable, an insurer owes a duty to defend its insured in a suit brought by a third party so long as it appears on the face of that party’s pleading that the allegations “may potentially come within the coverage of the policy.” Heffernan & Company v. Hartford Insurance Co., 418 Pa.Super. 326, 614 A.2d 296, 298 (1992); accord C.H. Heist Caribe Corp. v. American Home Assurance Co., 640 F.2d 479, 483 (3d Cir.1981). If a single claim in a multi-claim lawsuit has potential for coverage, the insurer must defend all claims until it is obvious that no possibility of recovery exists as to claims within the policy provisions. American Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71, 75 (3d Cir.1985); Heffernan, 614 A.2d at 298. All ambiguities must be construed in favor of the insured, although a court should not strain to create any such ambiguity. Pacific Indem. Co. v. Linn, 766 F.2d 754, 760-61 (3d Cir.1985). Hartford first states that all of the claims arise out of “programming” and thus are precluded by the policy’s programming exclusion which reads: This insurance does not apply to “bodily injury,” “property damage,” “personal injury” or “advertising injury” arising out of or which would have not have occurred but for “programming.” “Programming” means any of the following: 1. Statements or instructions, regardless of the form or method of their embodiment, that are used or intended to be used directly or indirectly in or with a computer or a computer system; or 2. Any and all information that is used or intended to be used in" }, { "docid": "237153", "title": "", "text": "v. Country Casualty Ins. Co., 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245 (1982); Nandorf v. CNA Ins. Companies, 134 Ill.App.3d 134, 88 Ill.Dec. 968, 479 N.E.2d 988, 991 (1st Dist.1985). The insurer has an obligation to defend if the allegations in the underlying lawsuit are even potentially within the scope of the policy. Maneikis, supra, 655 F.2d at 822; Solo Cup Co. v. Federal Ins. Co., 619 F.2d 1178, 1184 (7th Cir.), cert. denied, 449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980); LaRotunda v. Royal Globe Ins. Co., 87 Ill.App.3d 446, 42 Ill.Dec. 219, 408 N.E.2d 928, 933 (1st Dist.1980). While somewhat vague, “potentially covered” means that “the insurer’s duty to defend its insured arises whenever the allegations in a complaint state a cause of action that gives rise to the possibility of a recovery under the policy; there need not be a probability of recovery.” 7C J. Appleman, Insurance Law & Practice § 4683.01 at 67 (1979). As long as only one of the many grounds for recovery is potentially covered by the policy, the insurer must provide a defense against the entire complaint, even if one or more theories of recovery are specifically excluded under the policy. Id., § 4684.01 at 102, 106 (“the insurer is obligated to provide a defense against the allegations of covered as well as noncovered claims”). Cf. American Contract Bridge League v. Nationwide Mutual Fire Ins. Co., 752 F.2d 71, 75 (3d Cir.1985) (applying Pennsylvania law) (even though insured and insurer agreed certain allegations were not covered, insurer was obligated to defend insured until it could “confine the possibility of recovery to claims outside the coverage of the policy”). We must resolve any doubts as to coverage in favor of the insured. Maneikis, supra, 655 F.2d at 822. Finally, in interpreting Ohio’s policy, we must employ the well recognized rules of insurance contract construction. We must seek to find the intent of the contracting parties, Playboy Enter. v. St. Paul Fire & Marine Ins. Co., 769 F.2d 425, 428 (7th Cir.1985), giving unambiguous language its plain, ordinary and popular" }, { "docid": "12046208", "title": "", "text": "defend is a matter of contract, and the reason why primary insurers provide a defense is that their policies require that they do so. An industry custom allocating responsibility when two carriers both may have a contractual duty is not applicable when one of the parties bears no obligation. See American Nurses Ass’n v. Passaic Gen. Hosp., 98 N.J. 83, 484 A.2d 670 (1984). The duty to defend is confined to the risk covered by the policy, and if the allegations of the claim come within those perimeters, the carrier must meet its obligation even if the averments in the complaint are groundless or false. Ohio Casualty Ins. Co. v. Flanagin, 44 N.J. 504, 210 A.2d 221 (1965). It follows that a duty to defend may be broader than the undertaking to indemnify when the latter depends on proof of actual rather than alleged facts to establish the claim. See C.H. Heist Caribe Corp. v. American Home Assurance Co., 640 F.2d 479 (3d Cir.1981). For example, a liability carrier is obliged to defend its insured even if (under the facts as contrasted with allegations), there could be no judgment against the insured. See Ripepi v. American Ins. Cos., 349 F.2d 300 (3d Cir.1965). It follows also that the duty to defend arises when a claim is presented, not after its validity has been determined. Hartford Accident & Indemnity Co. v. Aetna Life & Ins. Co., 98 N.J. 18, 483 A.2d 402 (1984). If the circumstances are such that the scope of coverage and the correlative duty to defend may not be resolved until factual matters surrounding the claim have been determined at trial, the obligation to furnish a defense is transformed to one of reimbursement to the insured. If the circumstances are such that trial of the underlying claim would present a conflict between the interests of the insurer and insured with respect to the coverage issue, the carrier defends at its peril unless the insured has consented to representation by the carrier. Burd v. Sussex Mutual Ins. Co., 56 N.J. 383, 267 A.2d 7 (1970). Cooper contends that ISLIC’s" }, { "docid": "17048371", "title": "", "text": "Motion for Summary Judgment as to Defendant Parke-Davis (filed Feb. 3, 1983), Appendix of Policies. The Court of Appeals in American Home Products affirmed the district court’s holding that the insurer was obligated to defend the pharmaceutical company “in every suit in which the complaint permits proof of facts establishing coverage, until [the insurer] is able to exclude the possibility of any recovery for which it provided insurance.” 748 F.2d at 763, citing 565 F.Supp. at 1499-1500. There appears to be no dispute that the policy provisions concerning the duty of defense of the insurers in this action are virtually identical to the policy provisions that were before the Court of Appeals in American Home Products. Moreover, the parties do not dispute the general principle that an insurer has a duty to defend a suit against the insured where the complaint states facts that appear to bring the injury within the policy coverage. See Lee v. Aetna Casualty & Surety Company, 178 F.2d 750, 753 (2d Cir.1949) (L. Hand, C.J.) (“if the plaintiff’s complaint against the insured alleged facts which would have supported a recovery covered by the policy, it was the duty of the [insurer] to undertake the defence [sic], until it could confine the claim to a recovery that the policy did not cover”). See also Andover v. Hartford Accident & Indemnity Company, 153 Conn. 439, 217 A.2d 60 (1966); Conway v. Country Casualty Insurance Company, 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245 (1982); Detroit Edison Company v. Michigan Mutual Insurance Company, 102 Mich.App. 136, 301 N.W.2d 832 (1980); Danek v. Hommer, 28 NJ.Super. 68, 100 A.2d 198 (1953), aff'd 15 N.J. 573, 105 A.2d 677 (1954); Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa. 55, 188 A.2d 320 (1963). The pharmaceutical companies are therefore required by American Home Products to bear the initial burden of pro ducing evidence that the complaint permits proof that the alleged DES-related injury occurred during the coverage period of the policy. The burden then shifts to the insurer to prove, by a preponderance of the evidence, that any" }, { "docid": "16524144", "title": "", "text": "of the insured.” Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 206-07 (3d Cir.2001) (citations omitted). “When an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense.” Madison Constr. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 735 A.2d 100, 106 (1999). The Pennsylvania Supreme Court recently reiterated that: An insurer’s duty to defend is broader than its duty to indemnify. It is a distinct obligation, separate and apart from the insurer’s duty to provide coverage. Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 533 A.2d 1363 (1987). An insurer is obligated to defend its insured if the factual allegations of the complaint on its face encompass an injury that is actually or potentially within the scope of the policy. Id. at 1368 (describing the duty to defend as arising “whenever the complaint filed by the injured party may potentially come within the coverage of the policy.” (emphasis in original)); Gedeon v. State Farm Mut. Auto. Ins. Co., 410 Pa. 55, 188 A.2d 320 (1963) (same); Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484, 488 (1959) (“It is clear that where a claim potentially may become one which is within the scope of the policy, the insurance company’s refusal to defend at the outset of the controversy is a decision it makes at its own peril.”). As long as the' complaint “might or might not” fall within the policy’s coverage, the insurance company is obliged to defend. Casper [v. American Guarantee & Liability Ins. Co.], 408 Pa. 426, 184 A.2d 247 [ (1962) ] (quoting Judge Learned Hand’s assertion in Lee v. Aetna Casualty & Surety Company, 178 F.2d 750, 752 (2d Cir.1949)); Cadwallader, 152 A.2d at 488 (same). Accordingly, it is the potential, rather than the certainty, of a claim falling within the insurance policy that triggers the insurer’s duty to defend. The question of whether a claim against an insured is potentially covered is answered" }, { "docid": "19048111", "title": "", "text": "the district court in this diversity case was obliged to follow Pennsylvania’s choice-of-law rules. Those rules require application of the substantive law of Pennsylvania. In Griffith v. United Air Lines, 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court adopted a flexible choice-of-law rule which permits an “analysis of the policies and interests underlying the particular issue before the court” and a determination of which jurisdiction is most intimately concerned with the outcome of the litigation. Id. at 21, 22, 203 A.2d 796. Both Nationwide and Aetna are licensed to do business in Pennsylvania. The Livezey suit has been brought in Pennsylvania and involves the Pennsylvania Contract Bridge Association, as well as several Pennsylvania residents. The harm alleged in the Livezey suit occurred in Pennsylvania. Clearly, under Pennsylvania’s “policy, interests and contacts test,” it is Pennsylvania law which should be applied to resolve the present controversy. Pennsylvania law on the question of an insurer’s duty to defend its insured is well settled. In consideration for premiums paid, the insurer contractually obligates itself to defend its insured. This obligation arises whenever allegations against the insured state a claim to which the policy potentially applies even if the allegations are “groundless, false or fraudulent.” Gedeon v. State Farm Mutual Automobile Ins. Co., 410 Pa. 55, 58, 188 A.2d 320 (1963). Clearly the complaint filed by Livezey contains certain allegations and names of certain individual defendants not covered by the Nationwide policy. Although the complaint is not as specific as it might be, taken as a whole it provided sufficient information to put Nationwide on notice that a claim of personal injury, potentially covered by its policy, was being raised against its insured. Livezey’s answers to interrogatories further indicate that the allegations raised in the complaint were likely within the scope of coverage provided by Nationwide’s policy. Nationwide contends that even if it is liable for the defense of the defamation claims, it has no obligation to pay for the defense of the antitrust claim. Under Pennsylvania law, however, once a third party has raised allegations against an insured, which potentially" }, { "docid": "4402443", "title": "", "text": "of $1,104,-207.17. 2. Breach of the Duty to Indemnify. An insurer has a duty to indemnify its insured only if it is established that the insured’s damages are actually within the policy coverage. See C.H. Heist Caribe Corp. v. American Home Assur. Co., 640 F.2d 479, 483 (3d Cir.1981); C. Raymond Davis & Sons, 467 F.Supp. at 21. In the instant case, however, because the plaintiffs settled their dispute with Barnes there was no adjudication of liability and no apportionment of the settlement amount among the different counts of Barnes’ complaint. The plaintiffs argue that they are entitled to recover the total amount paid in settlement of the underlying action, $867,-155.00. Liberty Mutual counters that the plaintiffs have the burden of establishing what portion of the settlement is attributable to the defamation count in the Barnes action and that because they are unable to carry this burden, no damages are recoverable based upon the settlement amount. In support of their position that they are entitled to the entire settlement figure, the plaintiffs cite Pacific Indem. Co. v. Linn, 766 F.2d 754 (3d Cir.1985). In Linn, the Third Circuit affirmed the district court’s holding that “the duty to indemnify necessarily had to follow the duty to defend because settlement made it impossible to determine on what theories of liability, if any, the underlying claimants would have prevailed.” Id. at 766. The Third Circuit has subsequently clarified the holding in Linn, finding it inapplicable to a case similar to the instant one, where the insured, rather than the insurance company, settled the case: In [Linn ], the district court had directed various insurance companies to defend cases brought against their insured even though that litigation included some claims which were not within the policies’ coverage. When cases were later settled by the insurance carriers, the court refused to attempt allocation of indemnity and simply made it correspond to the duty to defend. In that instance, this court noted that by settling without an agreement with the insured, the carrier conceivably could foreclose any right of indemnification by the insured. Here, by contrast," }, { "docid": "4402423", "title": "", "text": "only from the language of the policy, but from all the surrounding circumstances. Elitzky, 358 Pa.Super. at 369, 517 A.2d at 986. A. Liberty Mutual’s Duty to Defend. 1. The Exclusion for Knowing Falsity. Under Pennsylvania law, the right of plaintiffs to a defense turns on whether the claim stated in the complaint potentially comes within the coverage of the policy. Cadwallader, 396 Pa. at 589, 152 A.2d at 488 (emphasis added). If coverage depends upon the existence of facts yet to be determined, the insurer is obliged to provide a defense “until such time as those facts are determined, and the claim is narrowed to one patently outside of coverage.” C. Raymond Davis & Sons, Inc. v. Liberty Mut. Ins. Co., 467 F.Supp. 17, 19 (E.D.Pa.1979). In addition, an “insurer is obliged to defend the entire claim if some of the allegations in the complaint fall within the terms of coverage and others do not.” Id.; see American Contract Bridge League v. Nationwide Mut. Fire Ins. Co., 752 F.2d 71, 75 (3d Cir.1985). Thus, the court must look to the nature of the allegations in Count IV of the Barnes complaint, the only count to which coverage arguably applies, to determine whether Liberty Mutual had an obligation to defend the plaintiffs in the underlying action. As an initial matter, I find that Count IV of the Barnes complaint, alleging defamation, is covered by the express terms of the policy provision governing “Personal and Advertising Injury Liability.” That provision states: We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal injury” or “advertising injury” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS — COVERAGES A AND B. We will have the right and duty to defend any “suit” seeking those damages. Plaintiffs’ Exh. 1, Section I, Coverage B, ¶ 1(a). “Personal injury” is defined to include “[o]ral or written publication of material that slanders or libels a person or organization or disparages a" }, { "docid": "1879858", "title": "", "text": "both flow from a determination that the underlying complaint triggers coverage; this determination is not based solely on the particular cause of action pleaded, but “[ijnstead it is necessary to look at the factual allegations contained in the complaint.” Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999); C.H. Heist Caribe Corp.,, 640 F.2d at 483 (the factual allegations of complaint must be reviewed to determine whether terms of policy potentially apply). The averments of the underlying complaint must be “liberally construed with all doubts as to whether the claims may fall within the policy coverage to be resolved in favor of the insured.” Roman Mosaic & Tile Co. v. Aetna Cas. & Sur. Co., 704 A.2d 665, 669 (Pa.Super.1997) (citing Cadioallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484 (1959); The Frog, Switch and Manufacturing Co., 193 F.3d at 746). In contrast, the actual duty to indemnify stands on separate footing. An insurer is required to indemnify only where the insured is held liable for a claim actually covered by the policy. Allen, 692 A.2d at 1095 (citing Pacific Indemnity Co. v. Linn, 766 F.2d 754 (3d Cir.1985)); see also Winner International Corp. v. Continental Casualty Co., 889 F.Supp. 809, 816 (W.D.Pa.1994) (“While an insurer must defend its insured if the complaint alleges conduct that potentially falls within the scope of the policy, it must indemnify its insured only if Lability is found for conduct that actually falls within the scope of the policy.”) (citing Allstate Ins. Co. v. Brown, 834 F.Supp. 854, 857 (E.D.Pa.1993) (there is no duty to indemnify “if the conduct for which the insured is found liable does not come within the scope of the policy”)) (citing Air Products & Chemicals v. Hartford Accident & Indemnity Co., 707 F.Supp. 762, 776 (E.D.Pa.1989)). Thus, the duty to indemnify does not arise until the liability imposed against the insured is conclusively established. C.H. Heist Caribe Corp., 640 F.2d at 483; Enron Oil Trading & Transportation Co. v. Underwriters of Lloyd’s of London, 47 F.Supp.2d 1152, 1161 (D.Mont.1996) (actual indemnification" }, { "docid": "237154", "title": "", "text": "covered by the policy, the insurer must provide a defense against the entire complaint, even if one or more theories of recovery are specifically excluded under the policy. Id., § 4684.01 at 102, 106 (“the insurer is obligated to provide a defense against the allegations of covered as well as noncovered claims”). Cf. American Contract Bridge League v. Nationwide Mutual Fire Ins. Co., 752 F.2d 71, 75 (3d Cir.1985) (applying Pennsylvania law) (even though insured and insurer agreed certain allegations were not covered, insurer was obligated to defend insured until it could “confine the possibility of recovery to claims outside the coverage of the policy”). We must resolve any doubts as to coverage in favor of the insured. Maneikis, supra, 655 F.2d at 822. Finally, in interpreting Ohio’s policy, we must employ the well recognized rules of insurance contract construction. We must seek to find the intent of the contracting parties, Playboy Enter. v. St. Paul Fire & Marine Ins. Co., 769 F.2d 425, 428 (7th Cir.1985), giving unambiguous language its plain, ordinary and popular meaning, while construing all ambiguous language in favor of the insured. Id.; State Farm v. Moore, 108 Ill.App.3d 250, 58 Ill.Dec. 609, 430 N.E.2d 641, 646 (2d Dist.1981). Only one Illinois case has addressed an insured’s duty to defend an insured against an underlying antitrust suit with common law unfair competition claims. Pleasure Driveway & Park District of Peoria v. Aetna Casualty & Surety Co., 80 Ill.App.3d 1093, 36 Ill.Dec. 231, 400 N.E.2d 651, 652-53 (3d Dist.1980). The court held the insurer had no duty to defend. The case is distinguishable, however, because the court based its decision on a policy exception excluding coverage for damages arising from “employment” decisions. The court did not construe policy provisions such as “advertising offense” and “personal injury,” see supra notes 2-3, in light of the underlying complaint and the decision is, therefore, of little assistance. Accordingly, we will look to decisions from other jurisdictions. State courts from other jurisdictions have held that insurers do have a duty to defend their insureds against antitrust suits that also allege other" }, { "docid": "13060553", "title": "", "text": "Pa. 306, 548 A.2d 246, 247 (1988) (finding that, under a different policy with similar language, an “ ‘occurrence’ must be an accident which a malicious, willful assault and beating could never be”). Under Pennsylvania law, the insurer has a duty to defend its insured when allegations contained in the complaint against it could potentially fall within the coverage of the policy. Air Products & Chemicals, Inc. v. Hartford Accident & Indemnity Co., 25 F.3d 177, 179 (3d Cir.1994) (citing Gedeon v. State Farm Mut. Auto. Ins. Co., 410 Pa. 55, 188 A.2d 320, 321-22 (1963); Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 152 A.2d 484, 488 (1959); Wilson v. Maryland Cas. Co., 377 Pa. 588, 105 A.2d 304, 307 (1954)). “As long as the complaint comprehends an injury which may be within the scope of the policy, the company must defend the insured until the insurer can confine the claim to a recovery that the policy does not cover.” Elitzky, 517 A.2d at 985. The insurer must defend the insured, even if the suit is “groundless, false, or fraudulent” and “has no basis in fact.” Britamco Underwriters, Inc. v. Weiner, 431 Pa.Super. 276, 636 A.2d 649, 651 (1994). Under Pennsylvania law, the particular cause of action pleaded is “not determinative of whether coverage has been triggered - Instead, it is necessary to look at the factual allegations contained in the complaint.” Mutual Benefit Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743, 745 (1999). Thus, as a threshold inquiry, this Court must determine whether the facts alleged in the complaint to the Holtzman Action can potentially constitute an “occurrence” to trigger coverage under the terms of Beilina’s Policy. See id. In the complaint to the Holtzman Action, Defendants plead facts in support of both negligent and intentional injury claims. Defendants aver that when Holtz-man mistakenly approached and entered Beilina’s home, Beilina initially responded and reacted to protect both his residence and his business property. (Pl.’s Ex. 1, Compl. in Holtzman Action at ¶ 22.) Defendants further aver that Beilina acted negligently, carelessly, recklessly, willfully, wantonly and" }, { "docid": "4765015", "title": "", "text": "that he would expect to be defending himself from his own employer. However, we have not relied upon extrinsic evidence in reaching our conclusions because Pennsylvania law provides a clear rule of construction. Under Pennsylvania law, ambiguities must be resolved against the insurer, who drafted the D & 0 policy, and in favor of the insured. See Mohn, 458 Pa. 576, 326 A.2d 346; United Services Automobile Ass’n v. Elitzky, — Pa.Super. —, 517 A.2d 982 (1986); Pacific Indemnity, 766 F.2d at 760-61. Therefore, we find that defendants are obligated to pay plaintiff’s defense costs as those costs become due. Defendants may be entitled to reimbursement from plaintiff if there is a final adjudication of active and deliberate dishonesty on the part of plaintiff. This brings us to another of defendants’ arguments. Defendants contend that they are justified in withholding payment because virtually all the allegations in the underlying suits against plaintiff involve some form of active and deliberate dishonesty, which is excluded from coverage by the D & O policy. We do not find this argument convincing. It is axiomatic that insurance coverage is determined by the allegations made in the complaint. Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321-22 (1963); Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985); C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance, 467 F.Supp. 17, 19 (E.D.Pa.1979) (“[t]he insurer is not required to defend the claim when it is apparent from the face of the complaint that none of the injuries that are alleged fall within the coverage of the policy”). If a claim falls outside the scope of the policy because of an exclusion in the policy, it is the insurer’s burden to demonstrate that the exclusion applies. Daburlos v. Commercial Insurance Co. of Newark, 521 F.2d 18, 24-25 (3d Cir.1975). But see Standard Venetian Blind, 503 Pa. at 306-307, 469 A.2d at 566-67 (insurer need not prove that the insured was aware of the exclusion). An insurer is not excused from its duty to defend until it becomes apparent" }, { "docid": "5453786", "title": "", "text": "court should read the policy to avoid ambiguities and not torture the language so as to create them. See St. Paul Fire & Marine Ins. Co. v. United States Fire Ins. Co., 655 F.2d 521, 524 (3d Cir.1981). An insurer’s duty to defend arises “whenever the complaint filed by the injured party may potentially come within the policy’s coverage.” Pacific Indem. Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985). If the factual allegations of the complaint, taken as true, state a claim to which the policy potentially applies, “the insurer must defend the case until it [can] confine the claim to a recovery that the policy [does] not cover.” Cadwallader v. New Amsterdam Cas. Co., 396 Pa. 582, 590, 152 A.2d 484, 488 (1959). To determine whether a claim may be covered, the court must ascertain the scope of the insurance coverage, and then analyze the allegations in the complaint. See Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa.Super. 55, 59, 639 A.2d 1208, 1210 (1994). An insurer’s duty to defend is separate and distinct from its duty to indemnify. See Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 583, 533 A.2d 1363, 1368 (1987). The duty to defend is broader than a duty to indemnify. The duty to indemnify arises only when the insured is found to be liable for damages covered by the policy. The burden of proving that a particular claim falls within the coverage of a policy is on the insured. See id. at 580, 533 A.2d at 1366-67. The scope of National Union’s obligation to indemnify and defend its insureds is defined in the umbrella policy section entitled: “Insurance Agreements I. Coverage.” This section of the policy provides: We will pay on behalf of the Insured those sums in excess of the Retained Limit that the Insured becomes legally obligated to pay by reason of liability imposed by law or assumed by the Insured under an Insured Contract because of Bodily Injury, Property Damage, Personal Injury or Advertising Injury that takes place during the Policy period and is caused by an Occurrence happening" }, { "docid": "4765016", "title": "", "text": "this argument convincing. It is axiomatic that insurance coverage is determined by the allegations made in the complaint. Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321-22 (1963); Pacific Indemnity Co. v. Linn, 766 F.2d 754, 760 (3d Cir.1985); C. Raymond Davis & Sons, Inc. v. Liberty Mutual Insurance, 467 F.Supp. 17, 19 (E.D.Pa.1979) (“[t]he insurer is not required to defend the claim when it is apparent from the face of the complaint that none of the injuries that are alleged fall within the coverage of the policy”). If a claim falls outside the scope of the policy because of an exclusion in the policy, it is the insurer’s burden to demonstrate that the exclusion applies. Daburlos v. Commercial Insurance Co. of Newark, 521 F.2d 18, 24-25 (3d Cir.1975). But see Standard Venetian Blind, 503 Pa. at 306-307, 469 A.2d at 566-67 (insurer need not prove that the insured was aware of the exclusion). An insurer is not excused from its duty to defend until it becomes apparent that there are no circumstances under which the insurer would be responsible. Pacific Indemnity, 766 F.2d at 763. Also, the usual course of civil litigation in the federal courts must be taken into account. See Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484, 488-89 (1959) (distinguishing Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954)). In Cadwallader, the Pennsylvania Supreme Court held that the insured was. entitled to defense costs because the complaint stated an alternative ground for relief which would have allowed recovery, and then went on to say: The second reason given by the able opinion of the trial court for [ordering the insurer to defend]; i.e. that a claim based on negligence [could] be ultimately sustained under the complaint, despite the allegations of conspiracy and fraud, because of the liberality of pleading under the Federal Rules of Civil Procedure also has merit. Id. at 489 (emphasis added). The Davis case is an excellent illustration of the legal rule. 467 F.Supp. 17. There, the insurer withheld" }, { "docid": "22174400", "title": "", "text": "review is plenary. Viger v. Commercial Insurance Co., 707 F.2d 769, 774 (3d Cir.1983); Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 371 (3d Cir.1982). Our review of factual disputes is governed by the clearly erroneous standard. Universal Minerals, 669 F.2d at 102; Rule 52(a), F.R.Civ.P. III. Each of the appealing insurance companies argues that the district court erred in holding that it had a duty to defend Dr. Linn in the underlying bookreader suits. After discussing general principles of insurance law regarding the duty to defend, we will address each company’s arguments seriatim. Under Pennsylvania law, an insurance company is obligated to defend an insured whenever the complaint filed by the injured party may potentially come within the policy’s coverage. Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321-22 (1963); Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Wilson v. Maryland Casualty Co., 377 Pa. 588, 105 A.2d 304 (1954); Seaboard Industries, Inc. v. Monaco, 258 Pa.Super. 170, 392 A.2d 738 (1978); see C.H. Heist Caribe Corp. v. American Home Assurance Co., 640 F.2d 479, 483 (3d Cir.1981). The obligation to defend is determined solely by the allegations of the complaint in the action. Wilson, 377 Pa. at 594, 105 A.2d at 307; see C.H. Heist Caribe Corp., 640 F.2d at 483 (“the factual allegations of [the] complaint against [the insured] are controlling.”). The duty to defend remains with the insurer until the insurer can confine the claim to a recovery that is not within the scope of the policy. Cadwallader, 396 Pa. 582, 152 A.2d 484; Seaboard Industries, 258 Pa.Super. 170, 392 A.2d 738. In construing an insurance policy, if the words of the policy are clear and unambiguous, the court must give the words their plain and ordinary meaning. Northbrook Insurance Co. v. Kuljian Corp., 690 F.2d 368, 372 (3d Cir.1982). When a term in the policy is ambiguous, however, and the intention of the parties cannot be discerned from the face of the policy, the court, in its attempts to arrive at a" } ]

[ { "docid": "23151144", "title": "", "text": "acts, were outside of the required 300-day time period for filing an administrative claim. After disposing of Haynes’ federal claims, the district court declined to exercise supplemental jurisdiction over her breach of contract claim. This appeal followed. Discussion All three of Haynes’ causes of action, Title VII, ADEA and ADA, require that she file a timely administrative claim within 300 days of the challenged discriminatory action. Haynes filed her EEOC charge on October 11, 2001. Therefore, the discriminatory actions on which she bases her claims must have occurred on or after December 15, 2000. 42 U.S.C. §§ 12117(a); 2000e-5; Duncan v. Manager, Dep’t. of Safety, City & County of Denver, 397 F.3d 1300, 1308 (10th Cir.2005) (Title VII); Davidson, 337 F.3d at 1183(ADA); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir.1998) (ADEA). Generally, a cause of action accrues “on the date the employee is notified of an adverse employment decision by the employer.” Davidson, 337 F.3d at 1187. However, not every perceived indignity will rise to the level of an adverse employment action triggering the 300-day limitations period. A “mere inconvenience or alteration of job responsibilities” will not do. Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1268 (10th Cir.2005) (quotation omitted). Only “acts that constitute a signifieant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits” will rise to the level of an adverse employment action. Id. (quotation omitted). Nonetheless, “we liberally interpret” whether an adverse employment action exists “and take a case-by-case approach, examining the unique factors relevant to the situation at hand.” Id. (quotation omitted.) We begin by identifying the allegations that constitute an adverse employment action because such “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new [300-day] clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The very precision of this" } ]

[ { "docid": "18968399", "title": "", "text": "the McDonnell Douglas framework, arguing that employer defendants should be required to prove that their proffered reason for an adverse action is true before the burden shifts to plaintiffs to show pretext. 1. Adverse Employment Action. An “[ajdverse employment action” for purposes of a discrimination claim is limited “to adverse actions that affect employment or alter the conditions of the workplace.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (alteration omitted). These actions involve a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change.in benefits.” Id. (internal quotation marks omitted). Lucas, citing Annett v. University of Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004), argues that “[a]cts that carry a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects may be considered adverse actions,” Aplt. Opening Br. at 27. He claims, without evidentiary support, that the corrective action subjected him to potential humiliation as a sexual predator. But his argument rests on a flawed legal premise: Annett defined an “adverse employment action” for purposes of a Title VII retaliation claim, which is broader than the definition of an “adverse employment action” for a Title VII discrimination claim. See Burlington N., 548 U.S. at 61-65, 68, 126 S.Ct. 2405 (holding that Title VII’s anti-retaliation provision prohibits any employer action that might “dissuade[ ] a reasonable worker from making or supporting a [discrimination] charge” and thus, covers a broader range of employer conduct than its substantive discrimination provision); see also Piercy, 480 F.3d at 1203 (explaining the Burling ton Northern made clear that the contours of an adverse action for discrimination claims are narrower than those for retaliation claims). We have held that a disciplinary or corrective action “standing alone, is not an adverse employment action.” Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006). “A written warning may be an adverse employment action only" }, { "docid": "16708701", "title": "", "text": "Regan claimed that Faurecia discriminated against her based on her gender by permitting male employees to work through lunch and leave work early on a regular basis, but not permitting her to do the same. On appeal, she argues that the district court erred in finding that she had failed to establish a prima facie case because she did not demonstrate that (1) she suffered an adverse employment action, and (2) she was treated differently than similarly situated males for the same conduct. Regan’s gender discrimination claims fail because she did not show that she suffered an adverse employment action. “An adverse employment action is an action by the employer that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir.2008) (internal quotation marks omitted). Regan relies on the evidence set forth above to claim that Faurecia’s denial of her request to regularly work through lunch or to work different hours was an adverse employment action. Faurecia’s denial of Regan’s request to have a modified work schedule and work through the lunch hour is not “a significant change in employment status.” Id. “A ‘mere inconvenience or an alteration of job responsibilities’ ... is not enough to constitute an adverse employment action.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 797 (6th Cir.2004) (en banc) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir.1996)). Therefore, the denial of her request does not constitute an adverse employment action. Alternatively, Regan argues that her resignation following Faurecia’s denial of her request to shift her work schedule an hour earlier was constructive discharge and, thus, constituted an adverse employment action. “To demonstrate constructive discharge, a plaintiff must adduce evidence to show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the employee actually quit.” Savage v." }, { "docid": "23706145", "title": "", "text": "“mere inconvenience” that did not rise to the level of an adverse action. The Supreme Court most recently addressed the contours of adverse employment actions in Burlington Northern & Santa Fe Ry. v. White, — U.S. —, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The Court made clear the substantive discrimination provisions of Title VII are limited “to [adverse] actions that affect employment or alter the conditions of the workplace.” 126 S.Ct. at 2412. Thus, while Burlington Northern modified our retaliation standards for adverse actions, it had no similar effect on our discrimination jurisprudence. Accordingly, we continue to examine claims of adverse action on the basis of race or sex discrimination on a case-by-case basis, “examining the unique factors relevant to the situation at hand.” Sanchez, 164 F.3d at 532. Adverse employment action includes “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004). But we still will not consider “a mere inconvenience or an alteration of job responsibilities to be an adverse employment action.” Sanchez, 164 F.3d at 532 (internal quotations omitted). In Sanchez, we held that a female teacher denied transfer to a position with “the same salary and benefits ... [and] substantially similar duties” did not suffer an adverse employment action because the position was “a purely lateral transfer.” Id. “If a transfer is truly lateral and involves no significant changes in an employee’s conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer [an] adverse employment action.” Id. at 532 n. 6. Piercy’s allegation of discrimination in shift-bidding fails for the same reasons as the claims in Sanchez. Most of Piercy’s arguments go to the desirability of certain shifts at CJC. But all of the shifts had similar duties and responsibilities, and, on this record, cannot be seen as substantially different than one another. Piercy, moreover, was eligible for different shifts, it was only" }, { "docid": "18068050", "title": "", "text": "Co. v. White, 548 U.S. 53, 71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). “Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.” Id. (internal quotation omitted). An adverse employment action is a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (internal quotation omitted) (emphasis added). The question then is whether Daniels’s reassignment was a sufficiently significant change to qualify. Daniels claims to have introduced evidence showing the cover position was more prestigious, had better working conditions, and provided more advancement opportunities. She argues it is objectively reasonable to prefer working during the day or the evening to working at night. Further, she argues UPS has effectively conceded the cover position was meaningfully different from the night window because it required a full-time supervisor to work the twilight window. The record citations Daniels provides to support her arguments are unhelpful. She cites several pieces of evidence showing she informed her various managers that she disliked working the night window and disliked working holidays. She cites to a statement by a former manager who, when asked whether Daniels was demoted by being moved to the night window, said what was done to her “wasn’t right.” R., Vol. V, at 884. And while she points to some evidence discussing the various duties of the different dispatch windows, all this shows is that dispatchers working the different windows had different duties. There may be some merit to the contention that the twilight window was more desirable in that UPS allowed only full-time supervisors to cover that window, but Daniels does not dispute that she could not perform all duties on the twilight window and did not work the twilight window when she was the cover dispatcher. We acknowledge that many employees would find working the day shift preferable to the night" }, { "docid": "10652160", "title": "", "text": "pattern of unconstitutional state action had been documented.”); Castells v. Fisher, No. 05-CV-4866, 2007 WL 1100850, at *5 (E.D.N.Y. Mar. 24, 2007) (finding that Congress had not validly abrogated sovereign immunity for Title II employment discrimination claims, noting that \"the ADA’s legislative record fails to show that Congress identified a history and pattern of irrational employment discrimination by the States against the disabled”). . New York does not enjoy immunity from Title VII claims. See Hibbs, 538 U.S. at 729-30, 123 S.Ct. 1972 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976)). . \"An adverse employment action is a materially adverse change in the terms and conditions of employment.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.2008) (internal quotation marks omitted) (emphasis omitted). To constitute a \"materially adverse change,” there must be \"a change in working conditions ... [that is] more disruptive than mere inconvenience or an alteration of job responsibilities.” Id. Employment actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir.2006) (\"Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” (internal quotation marks omitted)). \"[T]here is no question that ... termination is an adverse employment action.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.2006). Less clear is whether the failure of Defendants to allow Plaintiff to work her extra hours on the early shift in favor of Abraham, while continuing to allow her to work significant extra time (and thus earn more money) on the late shift is an adverse employment action under Title VII. First, Plaintiff suffered no \"materially adverse change \" in her employment conditions, as her regular assignment to the 3:00-to-7:00 shift" }, { "docid": "3159346", "title": "", "text": "adverse’ if they are ‘harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Hicks, 593 F.3d at 165 (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). Whether an employer’s action could dissuade a reasonable employee, situated similarly to the plaintiff, from making a charge of discrimination is an objective determination. See Tepperwien, 663 F.3d at 567. “Alleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct.” Id. at 568. However, to be “materially adverse,” a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir.2012) (internal quotation marks omitted). “ ‘[P]etty slights, minor annoyances, and simple lack of good manners will not’ give rise to actionable retaliation claims.” Millea v. Metro-North R.R., 658 F.3d 154, 165 (2d Cir.2011) (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). Actions “sufficiently disadvantageous” so as to constitute an adverse employment action “include a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 128 (2d Cir.2004) (citation and internal quotation marks omitted). Here, Moccio alleges that Dean Katz engaged in a series of retaliatory actions, starting in 2005 and ending with notice of her termination in October 2008. The Court construes Moccio to identify the following as adverse employment actions: (1) Katz’s decision, after the ILR reorganization, to assign Moccio to a thematic group without “giv[ing] [her] any choice” as to which group, see Moccio Dep. at 101; (2) Katz’s decision to assign Moccio to report to a thematic lead rather than the dean, see id. at 38; (3) Katz’s initial refusal" }, { "docid": "23706144", "title": "", "text": "assignments at CFC, and (2) a barrier to transferring to Metro Jail. The district court granted summary judgment on this claim because it concluded Piercy had not established an adverse employment action under the McDonnell Douglas burden-shifting test. We agree on its assessment of the first policy, but find the district court erred when examining the question of transfer to Metro. The parties and the district court applied the McDonnell Douglas framework to the sex discrimination claim. On Pier-cy’s first allegation of discrimination, we agree that McDonnell Douglas is appropriate. 1. Shift-Bidding Policy To make her prima facie McDonnell Douglas case for sex discrimination, Piercy must establish (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position at issue; and (4) she was treated less favorably than others not in the protected class. Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.1998). The district court found Piercy could not establish an adverse employment action because EPSO’s shift-bidding process created a “mere inconvenience” that did not rise to the level of an adverse action. The Supreme Court most recently addressed the contours of adverse employment actions in Burlington Northern & Santa Fe Ry. v. White, — U.S. —, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The Court made clear the substantive discrimination provisions of Title VII are limited “to [adverse] actions that affect employment or alter the conditions of the workplace.” 126 S.Ct. at 2412. Thus, while Burlington Northern modified our retaliation standards for adverse actions, it had no similar effect on our discrimination jurisprudence. Accordingly, we continue to examine claims of adverse action on the basis of race or sex discrimination on a case-by-case basis, “examining the unique factors relevant to the situation at hand.” Sanchez, 164 F.3d at 532. Adverse employment action includes “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004). But we still will not consider" }, { "docid": "18968398", "title": "", "text": "preponderance of the evidence that the defendant’s proffered reason for the employment decision is not the true reason, but a pretext for discrimination. Id. The magistrate judge ruled that the corrective action did not constitute an adverse employment action, but that the termination did. He assumed for the sake of argument that Lucas had established a prima facie case of race and reverse-gender-discrimination as to his termination. He ruled that the defendants had met their McDonnell Douglas burden because they had consistently articulated a legitimate, non-discriminatory reason for terminating Lucas—namely, his repeated and unwanted contact with Peterson and his insubordination and unwillingness to comply with the corrective action. The magistrate judge ruled Lucas had failed to establish a genuine issue of material fact that the reasons articulated by the defendants for terminating him were pretext for discrimination; thus, he granted the defendants’ motion for summary judgment. On appeal, Lucas argues the magistrate judge erred in ruling that the imposition of the corrective action was not an adverse employment action. He also challenges the application of the McDonnell Douglas framework, arguing that employer defendants should be required to prove that their proffered reason for an adverse action is true before the burden shifts to plaintiffs to show pretext. 1. Adverse Employment Action. An “[ajdverse employment action” for purposes of a discrimination claim is limited “to adverse actions that affect employment or alter the conditions of the workplace.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 62, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (alteration omitted). These actions involve a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change.in benefits.” Id. (internal quotation marks omitted). Lucas, citing Annett v. University of Kansas, 371 F.3d 1233, 1239 (10th Cir. 2004), argues that “[a]cts that carry a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects may be considered adverse actions,” Aplt. Opening Br. at 27. He claims, without" }, { "docid": "23341361", "title": "", "text": "2640461, at *2 (4th Cir. June 29, 2010) (unpublished) (same). B Having concluded that McDonnell Douglas applies to ADEA claims, we must now address the issue of whether Jones demonstrated a prima facie case of age discrimination. To prove a prima facie case of age discrimination, a plaintiff must show: “1) she is a member of the class protected by the [ADEA]; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class.” Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir.1998). The parties do not dispute that Jones demonstrated she was a member of the class protected by the ADEA, that she was qualified for her former position, and that she was treated less favorably than others not in the protected class. OKC argues, however, that Jones did not suffer an adverse employment action because she remained employed in a position with similar responsibilities and received a daily pay rate that was “almost exactly the same” as her per diem rate as an executive director. “The Tenth Circuit liberally defines the phrase ‘adverse employment action.’ Such actions are not simply limited to monetary losses in the form of wages or benefits. Instead, we take a ‘case-by-case approach,’ examining the unique factors relevant to the situation at hand.” Sanchez, 164 F.3d at 532 (citations omitted). Although we do not deem “a mere inconvenience or an alteration of job responsibilities to be an adverse employment action,” id. (quotation omitted), the prong is satisfied by a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir.2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Under the facts of this case, the district court correctly determined that Jones suffered an adverse employment action. Jones’ reassignment letter specifically stated that her salary level would remain the same for the" }, { "docid": "10802929", "title": "", "text": "that the Park Service took materially adverse action against him because he participated in protected activity. See McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012) (“To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by Title VII; (2) that the employer took a materially adverse action against him; and (3) that the employer took the action ‘because’ the employee opposed the practice.”). To be materially adverse, the employer’s action must be more than “those petty slights or minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Stated another way, “not everything that makes an employee unhappy is an actionable adverse action. Minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would otherwise form the basis of a discrimination suit.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996)) (internal quotation marks omitted). Materially adverse action would “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 126 S.Ct. 2405 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Typically, a materially adverse action in the workplace involves “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Such actions demonstrate an “objectively tangible harm.” See Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). Failure to nominate for time-off awards does not qualify as the type of objective, tangible harm akin to “firing” or “a significant change in benefits” that is obviously materially adverse. Of course, not all actionable harms are obvious, and a plaintiff alleging retaliation may rely on more subtle actions to make his case. For such alleged harms to be materially" }, { "docid": "12488619", "title": "", "text": "to [a] more inconvenient job’ ” are insufficient to constitute a tangible or material adverse employment action. Johnson v. Cnty. of Nassau, 480 F.Supp.2d 581, 595 (E.D.N.Y.2007) (citing Ellerth, 524 U.S. at 761, 118 S.Ct. 2257, 141 L.Ed.2d 633). Smith’s reliance on Kessler v. Westchester County Dept. of Social Services, 461 F.3d 199 (2d Cir.2006) is misplaced. In that case, the Second Circuit, applying Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), determined that a job reassignment may satisfy the adverse action requirement in a retaliation claim. Kessler, 461 F.3d at 209. However, “[t]he question of what conduct satisfies the adverse action requirement for a retaliation claim involves a different analysis from that applied to a substantive discrimination claim.” Ruhling v. Tribune Co., CV 04-2430(ARL), 2007 WL 28283, at *22 (E.D.N.Y. Jan. 3, 2007). In this regard, in White, the Supreme Court held that a plaintiff asserting a retaliation claim need not show adverse conduct which affects the terms and conditions of employment. Rather, it is sufficient to show conduct which might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Here, however, Smith does not bring any retaliation claims under Title VII. Thus, in order to withstand the Defendants’ motion for summary judgment on the issue of whether Smith’s involuntary transfer constituted a materially adverse employment action, Smith must point to a material issue of fact involving “a change in responsibilities so significant as to constitute a setback to the plaintiffs career.” Whethers v. Nassau Health Care Corp., 956 F.Supp.2d. 364, 376 (E.D.N.Y.2013) (citing Kessler, 461 F.3d at 206). In this regard, a “ ‘pure lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.’ ” Gordon v. New York City Bd. of Educ., No. 01 Civ. 9265(SAS), 2003 WL 169800, at *6 (S.D.N.Y. Jan. 23, 2003) (quoting Pimentel v. City of New York, No. 00 Civ. 326(SAS), 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002));" }, { "docid": "985325", "title": "", "text": "the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). “Typically, a materially adverse action in the workplace involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Id. (internal quotation marks omitted). A reduction in responsibilities can constitute a materially adverse action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (finding adverse employment action where' plaintiffs “duties dramatically declined in both quantity, and quality”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007) (reassignment “with significantly diminished responsibilities\" constituted an adverse action); Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[Withdrawing an employee’s supervisory duties constitutes an adverse employment action!.]”); Saunders v. Mills, 842 F.Supp.2d 284, 293 (D.D.C. 2012) (“Be cause the Court has found'that the diminished responsibilities constituted a material change in her employment, the Court also holds that , such diminished responsibilities would dissuade a reasonable employee from making or supporting a charge of discrimination,”)- “Whether a particular reassignment of duties constitutes an adverse action for purposes of Title VII is generally a jury question. The court may not take that question away from the jury if a reasonable juror could find that the reassignment left the plaintiff with significantly diminished responsibilities.” Czekalski, 475 F.3d at 365 (citation omitted). . However, not all changes in assignments or responsibilities' constitute a materially adverse action. For instance, the “D.C, Gircuit has held that minor changes in work-related duties or opportunities do not constitute an actionable injury unless they are accompanied by some other adverse change in the terms, conditions or privileges of employment.” Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002). Further, in Jones, the D.C. Circuit held that although plaintiff received an assignment that “was generally less" }, { "docid": "20643430", "title": "", "text": "reasonable employee would have found [it] materially adverse.” Mickelson, 460 F.3d at 1315. As the Supreme Court put it in Burlington Northern & Santa Fe Ry. v. White, — U.S. —, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), an employer’s action is adverse under Title VII if it “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Id. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)). Applying this standard, the Court held that a jury could reasonably find a material adverse action under Title VII where an employee was involuntarily transferred from a job as a railroad forklift operator to a less desirable position as a track laborer, even though the duties of both positions were similar. Id. at 2416-18. After Burlington Northern we have continued to examine claims of adverse action through a “case-by-case approach, examining the unique factors relevant to the situation at hand.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir.1998) (internal quotations and citations omitted). The materiality of a claimed adverse action is to be determined objectively; “petty slights, minor annoyances, and simple lack of good manners” will not deter “a reasonable worker from making or supporting a charge of discrimination.” 126 S.Ct. at 2415. The Supreme Court further noted, however, that “[c]ontext matters.” Id. In a recent case applying the Burlington Northern standard, we found that the “prospect of losing wages, benefits, and ultimately a job” would dissuade a reasonable worker from supporting a charge of discrimination. Mickelson, 460 F.3d at 1316. Even prior to Burlington Northern, we found adverse action if it “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different [job] responsibilities, or a decision causing a significant change in benefits.” Stinnett v. Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir.2003) (internal citations and quotations omitted). Examples of adverse action from our pre-Burlington Northern cases include: (1) the transfer of an experienced female police detective to a position in the police academy after the detective filed an EEOC complaint due to" }, { "docid": "12488618", "title": "", "text": "question on the 2010 Regents Examination. Ricca also confirmed that she transferred Smith to the Middle School because she thought he would be more effective as a Middle School teacher, and because he did not heed her direction regarding the graphing calculator. Brown testified that Smith was transferred to the Middle School, in part, because he had been insubordinate. When a plaintiff alleges that a job transfer constitutes an adverse employment action, the plaintiff must show that the new work assignment was “materially less prestigious, materially less suited to his [or her] skills and expertise, or materially less conducive to career advancement.” Galabya v. N. Y. City Bd. of Educ., 202 F.3d 636, 641 (2d Cir.2000). However, “[c]hanges in assignments or duties that do not ‘radically] change’ the nature of work are not typically adverse employment actions.” Weisbecker v. Sayville Union Free Sch. Dist., 890 F.Supp.2d 215, 233 (E.D.N.Y.2012) (citing Galabya, 202 F.3d at 641). A “ ‘bruised ego,’ ” a “ ‘demotion without change in pay, benefits, duties, or prestige,’ ” or “ ‘reassignment to [a] more inconvenient job’ ” are insufficient to constitute a tangible or material adverse employment action. Johnson v. Cnty. of Nassau, 480 F.Supp.2d 581, 595 (E.D.N.Y.2007) (citing Ellerth, 524 U.S. at 761, 118 S.Ct. 2257, 141 L.Ed.2d 633). Smith’s reliance on Kessler v. Westchester County Dept. of Social Services, 461 F.3d 199 (2d Cir.2006) is misplaced. In that case, the Second Circuit, applying Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), determined that a job reassignment may satisfy the adverse action requirement in a retaliation claim. Kessler, 461 F.3d at 209. However, “[t]he question of what conduct satisfies the adverse action requirement for a retaliation claim involves a different analysis from that applied to a substantive discrimination claim.” Ruhling v. Tribune Co., CV 04-2430(ARL), 2007 WL 28283, at *22 (E.D.N.Y. Jan. 3, 2007). In this regard, in White, the Supreme Court held that a plaintiff asserting a retaliation claim need not show adverse conduct which affects the terms and conditions of employment. Rather," }, { "docid": "19826399", "title": "", "text": "two claims. ZATKOFF, District Judge, Concurring in Part and Dissenting in Part. I concur with the factual description, analysis and conclusions set forth in Sections I., H.A., II.B., II.D. and II.F of Judge Gilman’s opinion. As such, I join with my colleagues in affirming the district court’s judgment with regard to Spees’s pregnancy-discrimination claim and her disability-discrimination claim as they pertain to the termination of her employment. I disagree, however, that Spees suffered an adverse employment action when she was transferred to the tool room. Accordingly, I write separately and respectfully dissent from the majority’s decision to reverse the district court’s judgment on Spees’s pregnancy-discrimination and her disability-discrimination claims as they pertain to her transfer to the tool room. As stated by the majority in Section II.C.l.: An adverse employment action has been defined as “a materially adverse change in the terms and conditions of [a plaintiffs] employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.2004) (en banc) (citation omitted). A “bruised ego” or a “mere inconvenience or an alteration of job responsibilities” is not sufficient to constitute an adverse employment action. Id. at 797. Adverse employment actions are typically marked by a “significant change in employment status,” including “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 798 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Reassignments and position transfers can qualify as adverse employment actions, particularly where they are accompanied by “salary or work hour changes.” See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885-86 (6th Cir.1996) (holding that a job transfer was not an adverse employment action because the plaintiff “enjoyed the same .... rate of pay and benefits, and her duties were not materially modified”). And even if a reassignment is not paired with a salary or work-hour change, it can nonetheless be considered an adverse employment action where there is evidence that the employee received “a less distinguished title, a material loss of benefits, significantly diminished material" }, { "docid": "985324", "title": "", "text": "not litigated before the EEOC, defendant agency was indisputably put on notice of plaintiffs allegations.”); Laughlin v. Holder, 923 F.Supp.2d 204, 213 (D.D.C. 2013) (“Laughlin raised the issue of her 2008 bonus denial early in the administrative process, and just one week after she found out about it, thus giving the agency ample notice and a fair opportunity to resolve her claim.”). B. Plaintiff Has Plausibly Alleged a Materially Adverse Action and a Retaliatory Hostile Work Environment Defendant contends that Plaintiff has failed to state a Title VII retaliation claim because she has not plausibly alleged that she sustained a materially adverse action at the hands of her employer. “[T]o sustain a retaliation claim, the employee need only demonstrate that the employer’s challenged action would have been material to a reasonable employee, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ....” Coleman, 867 F.3d at 215, 2017 WL 3480705 at *10 (internal quotation marks and alterations omitted). However, to “be materially adverse, the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). “Typically, a materially adverse action in the workplace involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Id. (internal quotation marks omitted). A reduction in responsibilities can constitute a materially adverse action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (finding adverse employment action where' plaintiffs “duties dramatically declined in both quantity, and quality”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007) (reassignment “with significantly diminished responsibilities\" constituted an adverse action); Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[Withdrawing an employee’s supervisory duties constitutes an adverse employment action!.]”); Saunders v. Mills, 842 F.Supp.2d" }, { "docid": "18068049", "title": "", "text": "to nothing in the record stating Isabell was trained in 2008. On the contrary, there is evidence Isabell already knew how to perform the twilight window duties by 2006. Daniels alleges she was denied training on the twilight window in 2004 or 2005. This was a discrete act, and she should have filed a claim challenging this within 300 days. Daniels does not allege she requested training after that date or was specifically denied such training within the 300 days before she filed her EEOC complaint. For all of these reasons, the district court correctly found the denial-of-training claim was untimely. C. Reassignment Daniels also contends UPS discriminated on the basis of her sex and age by permanently assigning her to night dispatcher and assigning a younger male to the cover dispatch position. UPS argues Daniels cannot establish a prima facie case of discrimination arising from this event because her assignment to the night window was not an adverse employment action. “[R]eassignment of job duties is not automatically actionable.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). “Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.” Id. (internal quotation omitted). An adverse employment action is a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Piercy v. Maketa, 480 F.3d 1192, 1203 (10th Cir.2007) (internal quotation omitted) (emphasis added). The question then is whether Daniels’s reassignment was a sufficiently significant change to qualify. Daniels claims to have introduced evidence showing the cover position was more prestigious, had better working conditions, and provided more advancement opportunities. She argues it is objectively reasonable to prefer working during the day or the evening to working at night. Further, she argues UPS has effectively conceded the cover position was meaningfully different from the night window because it required a full-time" }, { "docid": "9849342", "title": "", "text": "May 2004. As to plaintiffs arguments that Mr. Sanchez spoke Spanish to Mr. Rivera, invited him to his office, and left him handwritten notes, the Court concludes that these events are not adverse employment actions because there was no “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,” nor did they cause a “significant change in benefits.” Douglas v. Donovan, 559 F.3d at 552. Plaintiff may have preferred a supervisor with a more affectionate or inclusive management style, but he has not provided the Court with an explanation of how any or all of these events constituted a “significant change in employment status” or had “any effect on [the] salary, benefits, or grade” of his employment responsibilities or future employment opportunities. Blackmon-Malloy v. United States Capitol Police Bd., 338 F.Supp.2d 97, 106 (D.D.C.2004). As the Supreme Court has reminded, Title VII “does not set forth ‘a general civility code for the American workplace.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Even an employee who reports discriminatory behavior is not immunized “from those petty slights or minor annoyances that often take place at work and that all employees experience.” Id. at 68, 126 S.Ct. 2405. Without more of a showing from plaintiff, the Court concludes that these events do not constitute adverse employment actions for purposes of his discrimination claim. Though more serious, Mr. Kelly’s complaint that his FY 2002 performance evaluation constituted an adverse employment action also fails. Poor performance evaluations by themselves, though undesirable, are not adverse employment actions unless they “affect [] the [employee’s] grade or salary.” Brown v. Brody, 199 F.3d 446, 457-58 (D.C.Cir.1999); see also Douglas v. Donovan, 559 F.3d at 552; Taylor v. Small, 350 F.3d at 1293. While a negative evaluation sometimes “may drastically limit an employee’s chances for advancement,” in other cases it may be of no real consequence. Russell v. Principi, 257 F.3d" }, { "docid": "19826371", "title": "", "text": "of Spees’s claims is addressed below with the White framework in mind. C. Pregnancy-discrimination claim based on Spees’s transfer to the tool room Spees first claims that JMI discriminated against her by transferring her to a tool-room position once it learned of her pregnancy. The district court granted JMI’s motion for summary judgment on this claim, finding that the transfer did not constitute an adverse employment action. Í. The transfer as an adverse employment action An adverse employment action has been defined as “a materially adverse change in the terms and conditions of [a plaintiffs] employment.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir.2004) (en banc) (citation omitted). A “bruised ego” or a “mere inconvenience or an alteration of job responsibilities” is not sufficient to constitute an adverse employment action. Id. at 797. Adverse employment actions are typically marked by a “significant change in employment status,” including “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id. at 798 (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). Reassignments and position transfers can qualify as adverse employment actions, particularly where they are accompanied by “salary or work hour changes.” See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885-86 (6th Cir.1996) (holding that a job transfer was not an adverse employment action because the plaintiff “enjoyed the same ... rate of pay and benefits, and her duties were not materially modified”). And even if a reassignment is not paired with a salary or work-hour change, it can nonetheless be considered an adverse employment action where there is evidence that the employee received “a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Id. at 886 (citation omitted). Upon learning that Spees was pregnant, JMI transferred her from a daytime welding position to a daytime position in the tool room, where she worked for approximately one week before being transferred to a nighttime" }, { "docid": "2210571", "title": "", "text": "protected activity and the asserted adverse action. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.2007). If a plaintiff “puts forth sufficient evidence to establish a prima facie case of retaliation” and a defendant “offers a non-diseriminatory explanation” for his termination, the plaintiff “bears the burden of establishing that the employer’s proffered explanation is pretext.” Yashenko v. Harrah’s Casino, 446 F.3d 541, 551 (4th Cir.2006). The district court concluded that Hoyle’s reassignment to a 5-S position cannot support a prima facie case of retaliation because “such assignment does not constitute an actionable adverse employment action.” We disagree. An adverse action is one that “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. In addition, Hoyle “must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citing Rochon v. Gonzales, 438 F.3d 1211, 1217-18 (D.C.Cir.2006)). Here, Hoyle was first reassigned from her regular off-line position to perform janitorial duties. In addition to her reassignment, Hoyle was, in fact, terminated. Both of these actions might have dissuaded a reasonable worker from advancing a charge of discrimination. Further, Hoyle demonstrates a causal connection because of the temporal proximity between her complaints and her reassignment. While evidence as to the closeness in time “far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.” Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.1989). Hence, Hoyle has made a prima facie showing of retaliation. Nevertheless, Freightliner has rebutted Hoyle’s prima facie case by alleging legitimate nondiscriminatory reasons for transferring and eventually terminating Hoyle. Further, Hoyle fails to demonstrate pretext. Hoyle acknowledges that the Mt. Holly plant was" } ]

[ { "docid": "3606456", "title": "", "text": "favor of Garrett, summary judgment must be denied. A threshold issue in this case is whether VMMC’s Severance Plan is an ERISA plan. VMMC contends that its plan is not an employee welfare benefit plan as defined by the statute. Severance benefit plans generally are covered by ERISA, since they are expz*essly included in the definition of “employee welfare benefit plan.” See 29 U.S.C. § 1002(1); see also Bradwell v. GAF Corp., 954 F.2d 798, 800 n. 1 (2d Cir.1992) (“it is well settled that severance pay policies are employe! e] welfare benefit plans within the meaning of ERISA”). The Supreme Court in Fort Halifax Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), however, carved out an exception to the general zule that severance plans are ERISA plans. In Fort Halifax, the Court held that a single severance payment paid upon the occurrence of a single event did not constitute an ERISA plan because such a payment did not involve any administration and therefore could not be considered a “plan.” 482 U.S. at 12, 107 S.Ct. at 2218. Subsequent case law has determined that the Fort Halifax exception is narrow. A plan is an ERISA plan if it has a “minimal, ongoing administrative scheme.” District of Columbia v. Greater Washington Board of Trade, — U.S. -, n. 2, 113 S.Ct. 580, 584 n. 2, 121 L.Ed.2d 513 (1992). For example, in James v. Fleet/Norstar Financial Group, Inc., Civ. No. 2-91-124 (PCD) (D.Conn. July 27, 1991), the court held that a one-time offer of sixty-days of severance pay in lieu of the sixty-day notice of plant closing required by the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101, et seq., involved sufficient administration to constitute an ERISA plan. The court reasoned that an administrative procedure was required for determining the different termination dates of each employee and the different amounts due each employee under the plan. Similarly, in Pane v. RCA Corp., 868 F.2d 631 (3rd Cir.1989), the court held that a severance plan adopted to encourage executives to stay pending a merger" } ]

[ { "docid": "23500769", "title": "", "text": "the claim rather than to jurisdiction. See, e.g., Henglein v. Informal Plan for Plant Shutdown Benefits for Salaried Employees, 974 F.2d 391, 397-98 (3d Cir.1992); Murphy v. Inexco Oil Co., 611.F.2d 570, 573 (5th Cir.1980). Under the law of our Circuit, however, the question is jurisdictional, and if we do not find jurisdiction, we may not consider the merits of Kulinski’s claim. See Jader, 925 F.2d at 1077. The existence of an ERISA plan is a mixed question of fact and law that on appeal we review de novo. See, e.g., Harris, 794 F.2d at 360; accord Custer v. Pan American Life Ins. Co., 12 F.3d 410, 416 (4th Cir.1993); Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1047 & n. 5 (10th Cir.1992). We note that some circuits consider this question to be one of fact, and thus subject to review under the clearly erroneous standard. See, e.g., Deibler v. United Food and Commercial Workers’ Local Union 23, 973 F.2d 206, 209-10 (3d Cir.1992); see also Wickman v. Northwestern Nat’l Ins. Co., 908 F.2d 1077, 1082 (1st Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990); Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Based on the law of our Circuit (which we believe to be the better view in any event), we apply the de novo standard of review in this case. An employer’s decision to extend benefits does not constitute, in and of itself, the establishment of an ERISA plan. Wells v. General Motors Corp., 881 F.2d 166, 176 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). Instead, Fort Halifax Packing Co., v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and its progeny have delineated the standard to be applied to determine whether a benefits plan falls within ERISA’s ambit: The pivotal inquiry is whether the plan requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple" }, { "docid": "14251182", "title": "", "text": "benefits offered to those not offered “substantially equivalent employment”); Pane v. RCA Corp., 667 F.Supp. 168, 170-71 (D.N.J.1987), aff'd 868 F.2d 631 (3rd Cir.1989) (administrative scheme found where employee was entitled to benefits only in certain instances such as termination without cause)). As with the case at bar, the common element in the cases compared in Kulinski is that determining eligibility requires reviewing the individual circumstances of each employee against specific benefit criteria. The Court therefore finds that the change of control plan adopted by Saks required an ongoing administrative scheme, and is therefore a benefit plan covered under ERISA. C. Preemption Having found that the change of control Plan adopted by Saks is an ERISA benefits plan, the Court must determine if Plaintiffs’ state law claims are preempted by the Act. Under ERISA’s preemption provision, any claim for benefits under an ERISA employee benefit plan must come under the Act’s civil enforcement scheme, 29 U.S.C. § 1132. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52-57, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Metropolitan Life v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The Court must, therefore, review whether Plaintiffs’ claims relate to the Plan at issue here. A law “relates to” an employee benefit plan under ERISA if it (1) expressly refers to, or (2) has a connection to such a plan. Eckelkamp v. Beste, 315 F.3d 863, 870 (8th Cir.2002) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Here, Plaintiffs assert state law causes of action for breach of contract, promissory estoppel, fraudulent misrepresentation, and a claim under the Iowa Wage Payment Collection Law, Iowa Code Chapter 91A. The claims arise from Plaintiffs’ claims for benefits pursuant to the October 27, 2000 letter, after the consolidation of Saks’s Younker’s division. As found above, the letter was distributed in connection with the change of control Plan adopted by Saks. Plaintiffs’ claims, therefore, are essentially claims for benefits under the plan or challenges to Saks’s administrative and fiduciary responsibilities with regards to" }, { "docid": "4364490", "title": "", "text": "statute neither establishes, nor requires an employer to maintain, an employee welfare benefit ‘plan’ ” within the meaning of the ERISA statute. Id. at 6, 107 S.Ct. at 2215. In Wells, we held that General Motors’ “procedure by which employees could elect to receive a one-time lump payment if they ceased working at the plant” was not an ERISA plan. We were persuaded by the fact that: [t]he plan was not ongoing, nor was there any need for continuing administration of the payment program.... The facts that GM made the payment pursuant to a Voluntary Termination of Employment “Plan” and that the employees received a benefit do not convert the plan into an “employee benefit plan” for purposes of ERISA. 881 F.2d at 176. Fontenot has offered no meaningful basis for distinguishing the “plans” at issue in Fort Halifax and Wells from the severance plan at issue in this case. NL Industries’ severance plan involves “a one-time lump sum payment triggered by a single event ... that may never materialize,” it “requires no administrative scheme whatsoever to meet the employer’s obligation,” and “[t]he employer assumes no responsibility to pay benefits on a regular basis ” Fort Halifax, 482 U.S. at 12, 107 S.Ct. at 2218; accord Wells, 881 F.2d at 176. The decision in Pane v. RCA Corp., 667 F.Supp. 168 (D.N.J.1987), aff'd, 868 F.2d 631 (3d Cir.1989), relied upon Fontenot in support of his position, does not prescribe a different conclusion. There, the severance agreements “required an administrative scheme,” 868 F.2d at 635, because “the circumstances of each employee’s termination [had to be] analyzed in light of [certain] criteria.” 667 F.Supp. at 170-71. In contrast, NL Industries’ severance plan requires no administrative scheme because those employees included in the plan were to receive benefits upon termination regardless of the reason for termination. Surely, Pane does not stand for the proposition that every “golden parachute” is an ERISA plan. Because we conclude that the severance plan is not governed by ERISA, we must pull the rip cord on this appeal. But as we jump from this appellate plane, we are" }, { "docid": "9585326", "title": "", "text": "Law Fraud Perdue appeals the district court’s ruling that his common law fraud and breach of contract claims are preempted by ERISA, or, alternatively, are void as within the statute of frauds. The district court correctly decided that ERISA preempts Perdue’s common law fraud claim because the only damages recoverable under the claim “relate to” the value of the severance benefits waived by Perdue upon acceptance of the POM position. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987) (ERISA preempts common law claims that “relate to” the recovery of benefits under an ERISA plan.). 2. Breach of Oral Agreement to Offer a Franchise The district court incorrectly determined that ERISA preempts Perdue’s claim for breach of an agreement to confer a franchise because this common law claim does not “relate to” the BKC Program. Nevertheless, summary judgment on this claim is proper as the statute of frauds bars enforcement of the alleged promise. III. CONCLUSION Thus, we hold that the district court’s grant of summary judgment is AFFIRMED. . Neither Bushey nor Garnett was a member of the Committee at the time the Committee denied Perdue's eligibility to receive severance benefits under the Program. . 29 U.S.C. § 1001, et seq. (1985 & Supp.1993). . 29 U.S.C. § 1002(1) (1985 & Supp.1993). . In his motion filed June 12, 1992, Perdue suggests that federal subject matter jurisdiction “may not be” proper by characterizing the BKC Program as a non-ERISA plan, analogous to the non-ERISA plans in Fontenot v. NL Indus., Inc., 953 F.2d 960 (5th Cir.1992) and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, General Motors Corp. v. Wells, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). We disagree. In Whittemore v. Schlumberger Technology Corp., 976 F.2d 922, 923 (5th Cir.1992), this court distinguished the plans at issue in Fontenot and Wells, finding the Schlumberger plan to be an ERISA \"employee welfare benefit plan” because it was not created with a preconceived closing date, was effective for an extended period of time, and" }, { "docid": "13023152", "title": "", "text": "employment by a company acquiring the division of Schlumberger in which the employee worked. The plaintiffs worked in the MACCO Division of Schlumberger, which was purchased by Arrow Oil Tools (“Arrow”) on February 28, 1989. Apparently, the amended severance plan was adopted after plans were made for the purchase by Arrow, although it became effective before the sale took place. The plaintiffs, however, seek severance pay under the former provision. II. The plaintiffs first argue that federal jurisdiction is wanting because the Schlumberger plan is not an ERISA employee welfare benefit plan. ERISA defines a covered “employee welfare benefit plan” as one that provides “(A) ... benefits in the event of sickness, accident, disability, death or unemployment ... or (B) any benefit described in [section 302(c) of the Labor-Management Relations Act].” 29 U.S.C. § 1002(1). Benefits under section 302(c) of the Labor-Management Relations Act include “... pooled vacation, holiday, severance or similar benefits_” 29 U.S.C. § 186(c)(6). The plaintiffs depart from the plain meaning of these provisions to argue that Schlumberger’s severance pay in lieu. of notice is not an ERISA plan in light of Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). As the district observed, however, these eases are distinguishable. Fort Halifax involved a state law requiring severance pay, without establishment of a plan, and Wells involved a one-time severance obligation without the ongoing administration of benefits that is required of an ERISA plan. Schlumberger’s plan, on the other hand, was not created with a particular closing in mind and had been in existence for some time. The plaintiffs concede that “ordinarily, unfunded single employer severance policies are benefit plans within the Scope [sic] of ERISA.” Their argument that the Schlumberger plan is self-executing and thus does not require “administration” is to no avail, as we perceive nothing about the Schlumberger plan to take it out of the ordinary definition of an ERISA plan. Moreover, the plan" }, { "docid": "9585327", "title": "", "text": "judgment is AFFIRMED. . Neither Bushey nor Garnett was a member of the Committee at the time the Committee denied Perdue's eligibility to receive severance benefits under the Program. . 29 U.S.C. § 1001, et seq. (1985 & Supp.1993). . 29 U.S.C. § 1002(1) (1985 & Supp.1993). . In his motion filed June 12, 1992, Perdue suggests that federal subject matter jurisdiction “may not be” proper by characterizing the BKC Program as a non-ERISA plan, analogous to the non-ERISA plans in Fontenot v. NL Indus., Inc., 953 F.2d 960 (5th Cir.1992) and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, General Motors Corp. v. Wells, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). We disagree. In Whittemore v. Schlumberger Technology Corp., 976 F.2d 922, 923 (5th Cir.1992), this court distinguished the plans at issue in Fontenot and Wells, finding the Schlumberger plan to be an ERISA \"employee welfare benefit plan” because it was not created with a preconceived closing date, was effective for an extended period of time, and required \"some sort of an administrative set-up” to facilitate employee payments. Id. The BKC Program was in effect for three years, applied to two nation-wide personnel reorganizations, and required an “administrative setup” to monitor and facilitate provision of benefits. For these reasons, the BKC Program is an ERISA \"employee welfare benefit plan.” . 29 U.S.C. § 1132 provides, in relevant part, that \"[a] civil action may be brought—(1) by a participant ... (B) to recover benefits due to him under the terms of the plan, [or] to enforce his rights under the terms of the plan....” 29 U.S.C. § 1132(a) (1985 & Supp.1993). “Participant” is defined by section 1002(7) as \"any employee or former employee ... who is eligible ... to receive a benefit of any type from an employee benefit plan which covers [such] employee!].\" 29 U.S.C. § 1002(7) (1985 & Supp. I 1993). . The BKC Program provides as follows: This program applies to employees of the Company who work for Burger King Corporation or its subsidiary.... In addition, to be eligible for" }, { "docid": "20194872", "title": "", "text": "administrative scheme whatsoever to meet the employer’s obligation. The employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control. Rather, the employer’s obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves only making a single set of payments to employees at the time the plant closes. To do little more than write a check hardly constitutes the operation of a benefit plan. 482 U.S. at 12, 107 S.Ct. at 2218. Similarly, following Fort Halifax, the Court of Appeals for the Fifth Circuit held that an arrangement offered by General Motors during a mass lay-off in 1983 whereby General Motors employees were given the option of a one-time, lump-sum payment in lieu of retaining any rehire or seniority privileges was not a “plan” under ERISA. Wells v. General Motors, Corp., 881 F.2d 166, 168 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). In the present case, under section 183 of the Massachusetts statute, any eligible employee terminated in the twelve months preceding a transfer of control is entitled to a severance payment equal to twice the employee’s weekly compensation multiplied by his completed years of service. Such payment must be made within four pay periods following the change in control. Similarly, eligible employees terminated in the two years following a transfer of control are entitled to severance benefits within one pay period of their termination. An employee is considered eligible for benefits under the statute if he or she has worked for the employer for three or more years and if his or her termination was considered involuntary within the meaning of Mass.Gen.L. ch. 151A, § 25, the Massachusetts Unemployment Compensation Stat ute. Under section 25, an employee’s termination is involuntary so long as his or her discharge was not “attributable solely to deliberate misconduct" }, { "docid": "14293405", "title": "", "text": "to the Federal courts”, preempting state causes of action to provide federal remedies as well as uniform administrative practices. 29 U.S.C. § 1001(b); Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). ERISA does not govern every employee benefit, nor every health insurance policy. First, ERISA applies only to benefit plans, not all employee benefits. See Fort Halifax, supra 482 U.S. at 7-8, 19, 107 S.Ct. at 2215, 2221. “The argument that ERISA preempts state laws relating to certain employee benefits, rather than to employee benefit plans, is refuted by the express language of the statute, the purposes of the preemption provision, and the regulatory focus of ERISA as a whole.” Id. at 19, 107 S.Ct. at 2221. Second, ERISA does not reach purely individual contracts or purchases of insurance. See e.g., Taggart Corp. v. Life & Health Benefits Admin., Inc., 617 F.2d 1208, 1211 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225 (1981) (“ERISA “plans” are broader in concept than pure insurance transactions”). ERISA covers plans established or maintained by an employer or employee organization, not by an individual. Donovan, supra at 1373; see also Jervis v. Elerding, 504 F.Supp. 606, 608 (C.D.Cal.1980) (contract between employer and individual employee for post-retirement or post-termination in-kind compensation was an employment contract and not an ERISA “plan, fund, or program”). ERISA governs employee welfare benefit plans established or maintained by an employer or an employee organization engaged in commerce or in an industry or activity affecting commerce. 29 U.S.C. § 1003(a); see also Memorial Hosp. System v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990). The statutory definition of an “employee welfare benefit plan” can be divided into five parts. There must be “(1) a “plan, fund, or program” (2) established or maintained (3) by an employer or by an employee organization, or by both, (4) for the purpose of providing medical, surgical, hospital care, sickness, accident, disability, death, unemployment or" }, { "docid": "8462365", "title": "", "text": "severance payments to corporate executives terminated as the result of a corporate takeover was not a “plan” because it did not require an administrative scheme to meet the employer’s obligation. Even under the Bogue standard, however, Fleet’s undertaking to give 60-days additional pay to its employees did not constitute an ERISA “plan.” The simple arithmetical calculations and clerical determination that Fleet was required to make to ascertain each appellee’s severance pay was a far cry from the “ongoing, particularized, administrative, discretionary analysis” required of the employer under the program involved in Bogue. Id. See Wells v. General Motors Corp., 881 F.2d 166, 176 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990) (“procedure by which employees could elect to receive a one-time lump payment if they ceased working at the plant” not an ERISA “plan”). E. The result of the district court’s decision in this case would be that even if Fleet’s actions violated the employees’ rights under state law (on which we, of course, intimate no views), the employees could not obtain any redress therefor. They could not prevail on their state law claims because ERISA preempts those claims; and they could not prevail on their ERISA claim because ERISA permits what Fleet did. It is difficult to believe that Congress, which enacted ERISA to protect employees’ benefit rights, intended the preemption provision of that statute to produce such an anomalous result. III The district court dismissed the ERISA count of the complaint (Count IV) on the ground that ERISA permitted Fleet to terminate any undertaking to make severance payments. It is unnecessary to consider James’ challenge to that ruling, since our conclusion that Fleet’s commitment to give 60-days additional pay did not constitute a “plan” under ERISA makes the statute inapplicable to those payments. We therefore affirm the dismissal of Count IV on the alternative ground that ERISA does not cover Fleet’s refusal to make the payments. See Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991) (appellate court may affirm on any grounds for which there is record sufficient to" }, { "docid": "23500770", "title": "", "text": "908 F.2d 1077, 1082 (1st Cir.), cert. denied, 498 U.S. 1013, 111 S.Ct. 581, 112 L.Ed.2d 586 (1990); Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir.1988) (per curiam), cert. denied, 492 U.S. 906, 109 S.Ct. 3216, 106 L.Ed.2d 566 (1989). Based on the law of our Circuit (which we believe to be the better view in any event), we apply the de novo standard of review in this case. An employer’s decision to extend benefits does not constitute, in and of itself, the establishment of an ERISA plan. Wells v. General Motors Corp., 881 F.2d 166, 176 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). Instead, Fort Halifax Packing Co., v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and its progeny have delineated the standard to be applied to determine whether a benefits plan falls within ERISA’s ambit: The pivotal inquiry is whether the plan requires the establishment of a separate, ongoing administrative scheme to administer the plan’s benefits. Simple or mechanical determinations do not necessarily require the establishment of such an administrative scheme; rather, an employer’s need to create an administrative system may arise where the employer, to determine the employees’ eligibility for and level of benefits, must analyze each employee’s particular circumstances in light of the appropriate criteria. In Fort Halifax, the Supreme Court was asked to determine whether a Maine statute established a plan within the meaning of, and thus was preempted by, ERISA. Id. at 3-4, 107 S.Ct. at 2213-14. The statute required employers that closed or relocated certain plants to provide a one-time, lump-sum severance payment to each employee, one week’s pay for each year of employment. Id. at 4 n. 1 & 5, 107 S.Ct. at 2213-15 n. 1 & 5. Severance payments were not required, however, if the employee had been employed for less than three years, was- covered by an express contract that provided severance pay, or, in the event the plant was relocated, accepted employment at the new location. Id. The Supreme Court held that ERISA" }, { "docid": "8462364", "title": "", "text": "(9th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1847 (1993), the court held that a program to make severance payments to employees for whom a successor employer did not provide “substantially equivalent employment,” id. 976 F.2d at 1321, was such a plan. It reasoned that the determination whether the employment with the successor was “substantially equivalent” to that with the predecessor “obligated” the employer “to apply enough ongoing, particularized, administrative, discretionary analysis to make the program in this case a ‘plan’.” Id. at 1323. The court stated its agreement with the approach for “describing the fence between cases involving real ERISA plans and cases such as Fort Halifax,\" id., taken in Fontenot v. NL Indus., Inc., 953 F.2d 960 (5th Cir.1992), by ascertaining “whether the plan in question require[s] an administrative scheme because the circumstances of each employee’s termination [have to be] analyzed in light of [certain] criteria.” Bogue, 976 F.2d at 1323 (internal quotation marks omitted) (quoting Fontenot, 953 F.2d at 962-63). In Fontenot, the court held that a “golden parachute” program providing severance payments to corporate executives terminated as the result of a corporate takeover was not a “plan” because it did not require an administrative scheme to meet the employer’s obligation. Even under the Bogue standard, however, Fleet’s undertaking to give 60-days additional pay to its employees did not constitute an ERISA “plan.” The simple arithmetical calculations and clerical determination that Fleet was required to make to ascertain each appellee’s severance pay was a far cry from the “ongoing, particularized, administrative, discretionary analysis” required of the employer under the program involved in Bogue. Id. See Wells v. General Motors Corp., 881 F.2d 166, 176 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990) (“procedure by which employees could elect to receive a one-time lump payment if they ceased working at the plant” not an ERISA “plan”). E. The result of the district court’s decision in this case would be that even if Fleet’s actions violated the employees’ rights under state law (on which we, of course, intimate no views), the employees" }, { "docid": "1536069", "title": "", "text": "more of the terms of the agreements, the reasonable inference would be that these were sixty different contracts, each to be administered according to its own unique terms. If Golden Cat intended to treat the employees consistently, it would have implemented a program covering all employees, as the employer did in Bogue. . Similarly, in Simas, also relied upon by the majority, a Massachusetts \"tin parachute” law required employers to make substantial severance payments to employees who lost their jobs within a specified time period before or after a corporate takeover. 6 F.3d at 851. In order to be eligible for payment, each employee was required to meet the standard for unemployment benefits under state law. It is not at all difficult to see how such a scheme would require administrative oversight, and quite possibly subject the employer to differing regulatory requirements in different states. Indeed, the law in Simas seems tailor-made for ERISA pre-emption. In contrast, Collins’ agreement with Golden Cat required no ongoing administrative oversight, and because it applied only to him, there is no possibility that Golden Cat would be held to differing regulatory requirements on the same contract. . See also James v. Fleet/Norstar Financial Group, Inc., 992 F.2d 463, 466-68 (2d Cir.1993) (employer's promise to pay employees 60 days additional salary following plant closing not an ERISA plan because no ongoing, particularized, administrative discretionary analysis required); Fontenot v. NL Industries, Inc., 953 F.2d 960, 962-63 (5th Cir.1992) (golden parachute plan providing executives terminated within two years of a change in control with a lump-sum cash payment and a three-year continuation of certain benefits not an ERISA plan); Wells v. General Motors Corp., 881 F.2d 166, 175-76 (5th Cir. 1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990) (severance scheme not an ERISA plan even though employees could elect installment payments over two-year period instead of lump-sum payout). . The majority refers to an alleged admission by Collins at oral argument that his severance payment would not be due until he left the company, which could be \"some time down the road.”" }, { "docid": "22336509", "title": "", "text": "or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.\" Id. at § 1144(b)(2)(B). . See, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (state common law action brought by a beneficiary to recover plan benefits that were allegedly improperly withheld); Boren v. N.L. Indus., Inc., 889 F.2d 1463 (5th Cir.1989) (employee relied on state law to advance complaint that his benefits under ERISA plan were terminated); Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.1989) (action by beneficiary to recover pension benefits, predicated on oral modifications to the pension plan); Hermann Hosp. v. MEBA Medical & Benefits Plan, 845 F.2d 1286 (5th Cir.1988) (derivative action brought by assignee who stood in shoes of plan beneficiary to recover benefits owed under an ERISA plan). . Compare Pilot Life, 481 U.S. at 52, 107 S.Ct. at 1553 (state cause of action for improper processing of claim for ERISA benefits conflicts with civil enforcement scheme for ERISA-plan participants and beneficiaries under § 502(a)) with Hartle v. Packard Elec., 877 F.2d 354, 356 (5th Cir.1989) (claims \"only peripherally connected to the concerns addressed by ERISA” are not preempted). . See Mackey, 486 U.S. at 833, 108 S.Ct. at 2187; Perkins v. Time Ins. Co., 898 F.2d 470, 473 (5th Cir.1990) (“A state law claim ... which does not affect the relations among the principal ERISA entities (the employer, the plan fiduciaries, the plan, and the beneficiaries) as such, is not preempted by ERISA.”). . See generally 29 U.S.C. § 1001 (Congressional findings and declaration of policy): It is hereby declared to be the policy of this chapter to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts. Id." }, { "docid": "23067388", "title": "", "text": "employees severance pay was an employee welfare benefit plan. The employer had announced that one of its offices would be closed but told the workers in that office that, if they stayed on until the closing, they would receive sixty-days additional pay. In our view, the employer’s promise did not constitute an employee welfare benefit plan because “the nature of the payments did not require an ongoing administrative employer program to effectuate them.” Id. at 467. Other courts have reached a similar conclusion. See, e.g., Belanger v. Wymam-Gordon Co., 71 F.3d 451, 454 (1st Cir.1995) (ERISA implicated only if there are “continuing administrative and financial obligations”); Simas v. Quaker Fabric Corp., 6 F.3d 849, 853-54 (1st Cir.1993) (courts do not apply Fort Halifax where the state statute or employer promise creates “ongoing obligations”); Bogue v. Ampex Corp., 976 F.2d 1319, 1323 (9th Cir.1992) (adopting approach that ERISA requires “administrative scheme”), cert. denied, 507 U.S. 1031, 113 S.Ct. 1847, 123 L.Ed.2d 471 (1993); Fontenot v. NL Indus., Inc., 953 F.2d 960, 962-63 (5th Cir.1992) (same); Pane v. RCA Corp., 868 F.2d 631, 635 (3d Cir.1989) (same). But while it is plain that ERISA subject matter jurisdiction depends upon the need for an administrative program, the test for deciding which employer obligations and undertakings require such a program is opaque. See Simas, 6 F.3d at 854. In James, although the employer’s payments to its employees would have to be calculated individually (because the circumstances of each employee differed as to eligibility, termination, and deductions), we said that the “need to make such simple arithmetical calculations did not” mean that the severance payment program was an employee welfare benefit plan. 992 F.2d at 467. However, deciding what is not an ongoing administrative program does not aid our determination of which obligations are complex enough to require such a program. Other courts facing this same issue have looked to a variety of factors, including whether the employer’s undertaking or obligation requires managerial discretion in its administration, Bogue, 976 F.2d at 1323; whether “a reasonable employee would perceive an ongoing commitment by the employer to" }, { "docid": "4364487", "title": "", "text": "new employment. As a condition of participation, Fontenot signed a document waiving his rights to “vacation entitlement, separation allowance, as well as participation in any incentive plan.” Fontenot eventually requested benefits under the severance plan which request was denied. He then brought this lawsuit alleging his entitlements to the severance benefits under the auspices of ERISA. The district court dismissed his claims on defendant NL Industries’ motion for sum mary judgment. Relying on the Supreme Court’s decision in Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 2217, 96 L.Ed.2d 1 (1987) and our decision in Wells v. General Motors Corp., 881 F.2d 166, 176 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990), the district court held: [T]he NLSES Plan required Defendant to make only a one-time lump sum payment to certain employees. The requirement to pay was triggered by a single event. This single event — the change of control in NL Industries, Inc. — was a contingency that may never have materialized. Defendant may potentially never have had to make severance payments pursuant to the NLSES Plan. This theoretical possibility of a one-time obligation in the future created no need for an on-going administrative program to process claims and pay benefits. Consequently, the NLSES Plan is not an employee benefit plan and therefore is not governed by ERISA. District court op. at 7. Fort Halifax held that a lump sum severance payment, triggered by a single event that may never occur, is not a “plan” for purposes of ERISA: The requirement of a one-time lump sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation. The employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control. Rather, the employer’s obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do" }, { "docid": "1536070", "title": "", "text": "is no possibility that Golden Cat would be held to differing regulatory requirements on the same contract. . See also James v. Fleet/Norstar Financial Group, Inc., 992 F.2d 463, 466-68 (2d Cir.1993) (employer's promise to pay employees 60 days additional salary following plant closing not an ERISA plan because no ongoing, particularized, administrative discretionary analysis required); Fontenot v. NL Industries, Inc., 953 F.2d 960, 962-63 (5th Cir.1992) (golden parachute plan providing executives terminated within two years of a change in control with a lump-sum cash payment and a three-year continuation of certain benefits not an ERISA plan); Wells v. General Motors Corp., 881 F.2d 166, 175-76 (5th Cir. 1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990) (severance scheme not an ERISA plan even though employees could elect installment payments over two-year period instead of lump-sum payout). . The majority refers to an alleged admission by Collins at oral argument that his severance payment would not be due until he left the company, which could be \"some time down the road.” Supra, at 597. However, I understood him to constrain that time frame to the length of the agreement." }, { "docid": "8994533", "title": "", "text": "make to ascertain each appellee’s severance pay was a far cry from the \"ongoing particularized, administrative, discretionary analysis” required of the employer under the program involved in Bogue. James, supra at 468. Cf. Harms v. Cavenham Forest Indus., No. 87-4068, 1990 WL 19821, 1990 U.S.Dist. LEXIS 2095 (E.D.La. Feb. 26, 1990) (ERISA plan found where \"plaintiffs’ entitlement to severance benefits was part of a comprehensive scheme designed to remedy various potential situations;” contained a \"detailed scheme in which to determine the length of entitlement to severance benefits;” and contained \"significant administrative provisions”). . USF & G has cited the Fifth Circuit case of Whittemore v. Schlumberger Technology Corp., 976 F.2d 922 (5th Cir.1992), as support for its position that its guidelines constitute a \"plan” within the meaning of ERISA. The plaintiffs in Whittemore, all former employees of Schlumberger, brought suit against the company for breach of an employment contract. Essentially, plaintiffs claimed denial of severance pay under a provision of the company’s management policy manual that had provided for severance pay in lieu of notice of termination. The Fifth Circuit held that this severance pay plan was governed by ERISA. In so holding, the court distinguished both Fort Halifax and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990), by noting that the Schlumberger plan \"was not created with a particular closing in mind and had been in existence for some time.\" Id. at 923. The court further stated that \"the plan plainly required some sort of an administrative set-up in order to make payments to employees.” Id. The court is of the opinion that Whittemore does not support the finding of an ERISA plan in this case. The court would first note that USF & G itself maintains that upon implementation of the guidelines, it was an \"absolute certainty” that some reduction-in-force, subject to the guidelines, would occur. As stated in USF & G's rebuttal brief: \"[T]he guidelines were certain to be triggered. Some reduction-in-force was definite, predictable and certain....” In view of these statements, the" }, { "docid": "13023153", "title": "", "text": "of notice is not an ERISA plan in light of Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987), and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). As the district observed, however, these eases are distinguishable. Fort Halifax involved a state law requiring severance pay, without establishment of a plan, and Wells involved a one-time severance obligation without the ongoing administration of benefits that is required of an ERISA plan. Schlumberger’s plan, on the other hand, was not created with a particular closing in mind and had been in existence for some time. The plaintiffs concede that “ordinarily, unfunded single employer severance policies are benefit plans within the Scope [sic] of ERISA.” Their argument that the Schlumberger plan is self-executing and thus does not require “administration” is to no avail, as we perceive nothing about the Schlumberger plan to take it out of the ordinary definition of an ERISA plan. Moreover, the plan plainly required some sort of an administrative set-up in order to make payments to employees. III. The plaintiffs assert that if the Schlumberger plan is an ERISA plan, Schlumberger violated it by failing fully to disclose the terms of the amendment to the employees prior to their termination. The plaintiffs concede, however., that the amendment “technically occurred] before the employees’ termination.” Even if this concession were not enough, the district court specifically found that Schlumberger complied with ERISA’s disclosure requirements in that “plaintiffs admit receiving copies of the amended severance ... plan on February 7, and admit receiving a summary description of this plan change on March 8, 1989.” The plaintiffs do not dispute these facts. The plaintiffs acknowledge that Schlum-berger gave notice within the time permitted by ERISA. They argue only that “such a technical reading of the disclosure provisions ... work [sic] an inequitable result and give [sic] effect to form over substance.” We conclude, to the contrary, that Schlumberger was entitled to give notice within the statutory notice period and was not" }, { "docid": "23023682", "title": "", "text": "Bogue their attorney fees for this appeal is DENIED. . 29 U.S.C. § 1001, et seq. . Mindful of ERISA’s language, Allied-Signal carefully refers to this program as the \"Plan”. Bogue is similarly careful to call it the \"Program\". We prefer “program” because that is the word used in November 1986 letters by Allied-Signal in describing to key executives its \"Special Compensation Program for Designated Key Executives”. .The program also provided for a “Stay Bonus” and a “Sale Price Incentive”, neither of which are at issue here. . The court made other conclusions irrelevant to this appeal. . ERISA provides that it \"shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan\". 29 U.S.C. § 1144(a). . Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). . Id. at 12, 107 S.Ct. at 2217. . Id. . 881 F.2d 166 (5th Cir.), reh'g en banc denied, 887 F.2d 1083 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). . Id. at 176. . Id. . 868 F.2d 631 (3d Cir.1989). . Id. at 635. . 953 F.2d 960 (5th Cir.1992). . Id. at 962-63 (quoting Pane v. RCA Corp., 667 F.Supp. 168, 170-71 (D.N.J.1987)). . 29 U.S.C. § 1002(1) defines an employee benefit plan as one \"established or maintained by an employer\". . Without discussing the issue, two Second Circuit cases have applied ERISA to benefits established by parent corporations for employees of subsidiaries. See Reichelt v. Emhart Corp., 921 F.2d 425, 427-28 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2854, 115 L.Ed.2d 1022 (1991); Accardi v. Control Data Corp., 836 F.2d 126, 127-28 (2d Cir.1987). .Allied-Signal also argues that it was Bogue’s employer under ERISA when it established the program because it was acting in the interest of his employer, Ampex. 29 U.S.C. § 1002(5) provides that “[t]he term ‘employer’ means any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan ...” (emphasis" }, { "docid": "8994534", "title": "", "text": "of termination. The Fifth Circuit held that this severance pay plan was governed by ERISA. In so holding, the court distinguished both Fort Halifax and Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990), by noting that the Schlumberger plan \"was not created with a particular closing in mind and had been in existence for some time.\" Id. at 923. The court further stated that \"the plan plainly required some sort of an administrative set-up in order to make payments to employees.” Id. The court is of the opinion that Whittemore does not support the finding of an ERISA plan in this case. The court would first note that USF & G itself maintains that upon implementation of the guidelines, it was an \"absolute certainty” that some reduction-in-force, subject to the guidelines, would occur. As stated in USF & G's rebuttal brief: \"[T]he guidelines were certain to be triggered. Some reduction-in-force was definite, predictable and certain....” In view of these statements, the court can reach no other conclusion but that in contrast to the Schlumberger plan at issue in Whittemore, which \"was not created with a particular closing in mind,” id., USF & G’s \"workforce reduction guidelines” were created with particular employee terminations in mind. Moreover, again in contrast to Whittemore, the severance pay plan at issue here was not part of a \"management policy manual” which “had been in existence for some time.” Id. Rather, USF & G’s guidelines consisted of an isolated document which was first implemented in 1991, not long before plaintiff's termination in 1992. Finally, though the Whittemore court stated that the Schlumberger plan required an administrative scheme just to make payments to employees, the court is of the opinion that, for the reasons discussed in the body of this opinion, this is at odds with Fort Halifax, Fontenot and Wells, all cases in which an ERISA \"plan” was not found despite the fact that the employer had to make severance payments to employees. See, e.g., Wells, 881 F.2d at 176 (\"procedure by" } ]

[ { "docid": "1419452", "title": "", "text": "CHAPMAN, Circuit Judge: This appeal presents a question of construction of a Federal Crop Insurance Corporation (FCIC or Corporation) policy. The district court found that the plaintiffs were due $84,062.80 with interest under the policy; however, the parties agree that $76,-797.58 is the maximum amount recoverable. We find that the FCIC interpreted the policy correctly and reverse the court’s judgment. I Because of extreme drought, the crop year 1980 produced inferior crop yields for most peanut farmers, plaintiffs included. Melvin Mann and John Mann usually harvested 3600 to 3900 pounds per acre, but their yield in 1980 was only 1141 pounds per acre for their 342.3 acres (390,629 pounds total).. As expected, the scarcity of peanuts produced rapid escalation in market price, causing the market price to grossly exceed the support price. While most peanut farmers must sell their crop in the fall, immediately after completion of the threshing process, the Manns have constructed storage bins to allow them to store their peanuts in the hope of obtaining a better price. In December 1980, the Manns obtained an extension of time to file their insurance claim with the FCIC. In January 1981, they sold 216,636 pounds of their peanuts, retaining 173,993 pounds for seed, to the Hubbard Peanut Company for the support price (.226 cents per pound) plus forty cents per pound (approximately 62 cents per pound total). On this sale, the Manns realized $84,062.80 above the support price. When the plaintiffs submitted their claim to the FCIC, they failed to deduct the proceeds received above the support price. This present dispute has arisen because the FCIC maintains that the insurance coverage is for a dollar amount on each unit of peanuts insured, and any profits above the support price must be set off against the insurance proceeds. The plaintiffs maintain, however, that the excess amount represents a “seed and drayage bonus” rendered for extra services and care provided by the farmer. The Manns submit that, in the past, FCIC has not counted this bonus against the insurance proceeds and that certain agents of FCIC represented to plain tiffs that" } ]

[ { "docid": "3613434", "title": "", "text": "$3.00 per box because they were sold, even though they were sold as post-destruction \"salvage.” The policy in the Joe Todd Farms case was a dollar plan policy which is different from the Guaranteed Production Plan in the case at bar; however, for the issues being discussed, Defendants argue, and this court agrees, that the policies are similar. . Defendants calculated the gross indemnity due Plaintiffs to be $156,000.00, less unpaid premiums, with a net indemnity due of $108,000.00. Defendants have paid Plaintiffs this net sum of $108,000.00. . See also Black's Law Dictionary 500 (5th Ed.1983) (includes the phrase “purchase and sale” in its definition of \"market\"). . Plaintiffs' counsel agreed with this statement at the hearing before this court held on February 4, 1994. . See Dennis Strickland Affidavit (explains the method of calculating the indemnity due in this claim, pursuant to what this court finds to be clear, unambiguous policy provisions). . This court notes that Defendants’ agents’ comment that \"they would be back with the checkbook” was apparently not a misleading statement. Defendants have paid Plaintiffs $108,000.00, presumably by check. . In FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), plaintiffs reseeded 400 of their 460 acre wheat crop and advised agents of the FCIC of that fact. The agents informed them the entire crop was insurable. After most of the crop was destroyed, their claim was denied, based on the reseeding. (The agents had not mentioned the reseeding on the application). The Court noted the hardship of the case, but held that where federal crop insurance is involved and the FCIC will pay the loss, the representations of the agents cannot expand the coverage and estop the insurer. The Court noted that federal crop insurance is not just another form of insurance but a government remedial program whose costs are borne by the federal treasury. For that reason, the insured must be charged with notice of the regulations and policy provisions, which will not be disregarded. The court finds that the Merrill and Mann holdings are equally applicable to FCIC" }, { "docid": "530787", "title": "", "text": "acres they were reseeding on winter wheat acreage. The [agent] advised respondents that the entire crop was insurable, and recommended to the [FCIC’s] Denver Branch Office acceptance of the application. (The formal application itself did not disclose that any part of the insured crop was reseeded.) On May 28, 1945, the [FCIC] accepted the application. Id. at 382, 68 S.Ct. 1. Subsequently, most of the respondents’ crop was destroyed as a result of a drought. After the FCIC discovered that the destroyed acreage had been reseeded, it refused to pay the loss. See id. In deciding whether the FCIC could be held liable, the Supreme Court began by noting that [w]hatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. Id. at 383, 68 S.Ct. 1 (emphasis added). The Court then noted that, [i]f the Federal Crop Insurance Act had by explicit language prohibited the insurance of spring wheat which is reseeded on winter wheat acreage, the ignorance of such a restriction, either by the respondents or the [FCIC’s] agent, would be immaterial and recovery could not be had against the [FCIC] for loss of such reseeded wheat. Id. at 384, 68 S.Ct. 1. The same analysis would apply to federal regulations: “[T]he Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance.” Id. at 385, 68 S.Ct. 1. Because there was in fact a regulation that precluded recovery for the loss of the reseeded wheat, the respondents were essentially out of luck. See id. at 385-86, 68 S.Ct. 1. In" }, { "docid": "3613435", "title": "", "text": "statement. Defendants have paid Plaintiffs $108,000.00, presumably by check. . In FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), plaintiffs reseeded 400 of their 460 acre wheat crop and advised agents of the FCIC of that fact. The agents informed them the entire crop was insurable. After most of the crop was destroyed, their claim was denied, based on the reseeding. (The agents had not mentioned the reseeding on the application). The Court noted the hardship of the case, but held that where federal crop insurance is involved and the FCIC will pay the loss, the representations of the agents cannot expand the coverage and estop the insurer. The Court noted that federal crop insurance is not just another form of insurance but a government remedial program whose costs are borne by the federal treasury. For that reason, the insured must be charged with notice of the regulations and policy provisions, which will not be disregarded. The court finds that the Merrill and Mann holdings are equally applicable to FCIC rein-sured policies, as well as FCIC directly issued policies. . This rule is consistent with United States District Judge Traxler’s order in Knight v. American Nat’l Fire Ins. Co., 831 F.Supp. 1284 (D.S.C.1993) (unpublished order). . The FCIC policy is not punctuated like the policy issued to Plaintiffs. In Plaintiffs’ policy, the semicolon [;] between subsections (a) and (b) of the definition of \"harvested production” indicates a clear intention to separate the two phrases. Special Provisions, p. 2 of 4 (para. 6.c.(2)). This separation by the semicolon supports this court's finding that the language is unambiguous and that only subsection (b) is qualified by the grading standards. Id." }, { "docid": "530785", "title": "", "text": "to amend to add ASIC to this lawsuit in lieu of Assurant. Finally, the Court notes that it shall give Plaintiffs some leeway in conducting discovery vis-a-vis ASIC to determine whether Assurant or another affiliated entity may also have been involved. If discovery reveals a basis for Assurant’s liability, Plaintiffs can seek leave to amend. The Court emphasizes, however, that it is not authorizing Plaintiffs to conduct broad- ranging discovery on this specific issue. Rather, Plaintiffs shall have leave to conduct reasonable, narrowly tailored discovery on this matter. b. Fannie Mae As for Fannie Mae, the basic issue is whether it can be held liable for the alleged wrongdoing of Wells Fargo. In its motion, Fannie Mae makes two arguments: (1) that Plaintiffs have failed to plead any facts establishing an agency relationship between Wells Fargo and Fannie Mae, see Docket No. 61 (Mot. at 9) (arguing that “Plaintiffs allege only the ultimate conclusion ... without pleading the specific elements [of agency]”); and (2) that, even if Wells Fargo were Fannie Mae’s agent, the Merrill doctrine protects Fannie Mae from liability for the unauthorized acts of its agents. See Docket No. 61 (Mot. at 10-14). For purposes of this opinion, the Court assumes that Plaintiffs have adequately pled facts supporting an agency relationship between Wells Fargo and Fannie Mae given the contractual relationship wherein Wells Fargo services the loan for Fannie Mae. The question thus is whether the Merrill doctrine applies. The Merrill doctrine comes from a decades-old Supreme Court decision, Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In Merrill, the Supreme Court addressed whether a wholly government-owned enterprise — the Federal Crop Insurance Corp. (“FCIC”) — could be held liable for a mistake made by one of its agents. The FCIC was created by statute to insure producers of wheat against crop losses due to unavoidable causes, including drought. The respondents applied for insurance with a local agent of the FCIC. They informed the agent that they were planting 460 acres of spring wheat and that on 400 of these" }, { "docid": "530786", "title": "", "text": "doctrine protects Fannie Mae from liability for the unauthorized acts of its agents. See Docket No. 61 (Mot. at 10-14). For purposes of this opinion, the Court assumes that Plaintiffs have adequately pled facts supporting an agency relationship between Wells Fargo and Fannie Mae given the contractual relationship wherein Wells Fargo services the loan for Fannie Mae. The question thus is whether the Merrill doctrine applies. The Merrill doctrine comes from a decades-old Supreme Court decision, Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In Merrill, the Supreme Court addressed whether a wholly government-owned enterprise — the Federal Crop Insurance Corp. (“FCIC”) — could be held liable for a mistake made by one of its agents. The FCIC was created by statute to insure producers of wheat against crop losses due to unavoidable causes, including drought. The respondents applied for insurance with a local agent of the FCIC. They informed the agent that they were planting 460 acres of spring wheat and that on 400 of these acres they were reseeding on winter wheat acreage. The [agent] advised respondents that the entire crop was insurable, and recommended to the [FCIC’s] Denver Branch Office acceptance of the application. (The formal application itself did not disclose that any part of the insured crop was reseeded.) On May 28, 1945, the [FCIC] accepted the application. Id. at 382, 68 S.Ct. 1. Subsequently, most of the respondents’ crop was destroyed as a result of a drought. After the FCIC discovered that the destroyed acreage had been reseeded, it refused to pay the loss. See id. In deciding whether the FCIC could be held liable, the Supreme Court began by noting that [w]hatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is" }, { "docid": "22469527", "title": "", "text": "applicable regulations. The Ranch, however, contended that the government was estopped from maintaining the action as a matter of equity because of the erroneous advice given by its employees and relied on by the Ranch. The district court recognized the general rule that the United States cannot be es-topped by the unauthorized acts of its employees. Utah Power and Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791 (1917); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). But the court felt that the doctrine had since been undermined by recent appellate court decisions, notably United States v. Georgia-Pacific Co., 421 F.2d 92 (9th Cir. 1970) and Brandt v. Hickel, 427 F.2d 53 (9th Cir. 1970), which held that estoppel may be asserted against the government especially when the government acted in a proprietary capacity. The court felt that in this case the government was involved in ordinary contracts with individuals and therefore subject to the estoppel defense and not entitled to recover the improper payments. We affirm but base our decision on a different rationale. Traditionally, estoppel against the government has not been favored. The leading case expressing the limitations of equitable estoppel against the government is Merrill, supra. In Merrill a partnership engaged in wheat farming applied to the Federal Crop Insurance Corp. (FCIC), a wholly owned government enterprise, for crop insurance. The local agent advised the Merrills that their entire crop was insurable, but after part of the crop was destroyed the FCIC refused to compensate them. The FCIC claimed that its regulations did not permit insurance on their type of wheat and the local agent’s advice was incorrect. The Merrills argued that the agency should be estopped from denying liability, but the Supreme Court ruled that the Merrills had constructive notice that the agency’s regulations did not permit insurance on their type of crop. The Court refused to estop the government because of the unauthorized statements made by the local agent. Merrill undoubtedly stands for a restrictive notion of the applicability of the estoppel" }, { "docid": "6283959", "title": "", "text": "from the Federal Crop Insurance Corporation (the “FCIC”). This type of insurance is generally bought by the making of a promissory note to the insurer for the amount of the premium. If a condition of insurance later transpires, the premium is deducted from the indemnity paid to the insured, thereby satisfying the promissory note. Prior to the time Hampton first began buying MPCI, only the FCIC sold it. In 1980, however, the FCIC began reinsur-ing private insurers who could sell MPCI directly to farmers! While Hampton bought his MPCI directly from the FCIC, he did so through the services of an agency called Osmer. In 1983 Eddie Pruett, an independent insurance agent, acquired Osmer and became the agent through whom Hampton bought his MPCI from the FCIC. Pruett became an agent of IB & MReC for purposes of selling MPCI on February 15, 1985. On February 28, 1985, Hampton applied for MPCI for his two farms with IB & MReC, which was in turn reinsured by the FCIC. In 1983, the FCIC first allowed a particular kind of MPCI to cover farms — individual yield coverage (“IYC”). IYC covers a farm based on that farm’s particular production history in bushels per acre. Prior to 1983, the FCIC only provided for area plan coverage, which is based on average yields in bushels per acre established according to actuarial tables and the production average of the farms in a given area. Apparently the local Agricultural Stabilization Conservation Service (the “ASCS”) committee keeps the necessary records for setting the applicable area plan coverage. IYC coverage would be superior to area plan coverage for those farms that produced a higher yield than the average yields reflected by the ASCS. In 1983 and 1984, IYC could be provided to farms that had at least a three-year production history or, failing a three-year history, that had a yield established by the local ASCS committee. In December 1984, however, the FCIC changed its IYC regulations and disallowed the alternative method of obtaining IYC on farms without the requisite three-year production history. Thus, beginning in 1985, if a" }, { "docid": "13865970", "title": "", "text": "to-do or cause to be done what the law does not sanction or permit.” In Felder v. Federal Crop Insurance Corporation, 146 F.2d 638, 640, the Fourth Circuit Court of Appeals applied the principle just stated in a case involving cotton crop insurance, by the same corporation named as defendant, here. There the insured grower had not. filed a proof of loss within the time required by the policy. The court held that, right of recovery was barred and that, the requirement had not been waived by action on the part of the County Committee. See also, Mock v. United States, 10 Cir., 183 F.2d 174, where it was held: that recovery on a wheat crop policy of' the same corporation was barred for failure on the part of the insured to submit, proof of loss as required by the policy. In Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10, wheat growers in Bonneville County, Idaho, applied to the County Committee, acting as agent for the Corporation for insurance on a crop of growing wheat. Although the Committee was correctly informed that 400 acres consisted of reseeded winter wheat acreage, it erroneously advised the growers that, the entire crop was insurable, and upon its recommendation, the Corporation accepted the application. The crop was. destroyed by drought, but the Corpora— tion refused to pay the loss on the ground that the Wheat Crop Insurance Regulations did not authorize insurance of reseeded wheat and, hence, barred recovery as a matter of law. The Supreme Court sustained the contention and reversed the court of appeals which had affirmed the district court. The following language of the opinion, I feel, is applicable in the instant case as well: “The case no doubt presents phases of hardship. We take for granted that, on the basis of what they were told by the Corporation’s local agent, the respondents reasonably believed that their entire crop was covered by petitioner’s insurance. And so we assume that recovery could be had against a private insurance company. But the Corporation is not a" }, { "docid": "5069564", "title": "", "text": "their wheat crop. In so doing, they informed the Bonneville County Agricultural Conservation Committee, which was acting as the Federal Crop Insurance Corporation’s (“FCIC”) agent. The Committee erroneously advised the respondents that the entire crop was insurable. Unbeknownst to the Committee and respondents, however, was that the Wheat Crop Insurance Regulations, which were applicable to the contract, excluded part of respondent’s crop from coverage. Subsequently, most of respondent’s crop was destroyed. The FCIC refused to pay the loss stating that the Wheat-Crop Insurance Regulations barred recovery as a matter of law. The Supreme Court, after first pointing out that FCIC must be differentiated from a private insurance company, stated that: “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority.” Id. at 384, 68 S.Ct. at 3. The Court continued: “[T]he Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance.” Id. Indeed, pointed out the Court, the wheat regulations were incorporated by reference in the application. Thus, the FCIC did not err in refusing to pay the respondents’ claims. See, also, Mock v. United States, 183 F.2d 174 (10th Cir.1950); Felder v. Federal Crop Ins. Corp., 146 F.2d 638 (4th Cir.1944); Byrne v. Federal Crop Ins. Corp., 289 F.Supp. 873 (D.Minn.1968); United States v. Blackburn, 109 F.Supp. 319 (E.D.Mo.1952). In the instant action, the Federal Crime Insurance Regulations explicitly limited defendant Brodie’s authority to act as the FCIP’s authorized agent. Clearly, that authority did not encompass receiving proof of loss claims. Under the reasoning of Federal Crop Ins. Corp., plaintiff" }, { "docid": "5069563", "title": "", "text": "intentional or not, the regulations are precise; the agent or broker is the insured’s agent except where the regulations expressly provide otherwise. As shown, there are specific instances wherein the regulations clearly allow for the agent or broker to act on behalf of the FCIP. Acceptance of the proof of loss from the insured, however, is not such an instance. The Court concludes, therefore, that the FCIP’s interpretation of its regulations is reasonable and correct as a matter of law. See Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983) (great deference should be given to an agency’s construction of its own regulations.) EFFECT OF REGULATIONS The remaining question becomes the effect of the regulations on the parties’ contract of insurance. The contract is unambiguous. Like the abstract, it provides that it is subject to the applicable regulations. The Court finds the case of Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947) particularly instructive. There, respondents applied for insurance under the Federal Crop Insurance Act to insure their wheat crop. In so doing, they informed the Bonneville County Agricultural Conservation Committee, which was acting as the Federal Crop Insurance Corporation’s (“FCIC”) agent. The Committee erroneously advised the respondents that the entire crop was insurable. Unbeknownst to the Committee and respondents, however, was that the Wheat Crop Insurance Regulations, which were applicable to the contract, excluded part of respondent’s crop from coverage. Subsequently, most of respondent’s crop was destroyed. The FCIC refused to pay the loss stating that the Wheat-Crop Insurance Regulations barred recovery as a matter of law. The Supreme Court, after first pointing out that FCIC must be differentiated from a private insurance company, stated that: “Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is" }, { "docid": "1419459", "title": "", "text": "“bonus”. Harvey J. Hubbard, Jr., the purchaser of Mann’s peanuts’, testified that the price he paid for the peanuts did not include a “bonus” or premium for services, rather it reflected the going market rate for peanuts. The receipt from the sale has no notation regarding a bonus for seed or drayage. We therefore find that the valuation by the FCIC under 7 C.F.R. § 425.7(d)(8)(c)(l) at the gross receipt was the proper method of valuation. Thus, the Manns were due $29,123.52 under their FCIC policy. This amount, according to the record, has already been paid. Ill The Manns have argued that if we were to find adversely to them on the issue of valuation, they should still prevail because the FCIC is estopped from deducting the forty cents per pound from the policy amount. Their estoppel argument is based upon statements by an FCIC insurance agent and field adjustment supervisor. The Manns state, and the FCIC agrees, that these men told the Manns that “bonuses” would not be counted in 1980. These agents testified at trial, however, that their statements were made before the surge in the market price and that they both were referring to the “seed and drayage bonus” for services that had not been counted in the past, not a forty cent profit due to abnormal market conditions. An agent of the FCIC could not extend crop insurance where there was none because the doctrine of estoppel cannot extend the coverage beyond that authorized by Congress and the rules promulgated by the FCIC. FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The regulations and the policy stated that the threshed and sold crop is to be valued at gross receipt or fair market value. The FCIC valued the crop according to the explicit language of the regulations and policy and the valuation was not contrary to past practices and policies of the agency. The farmer is charged with knowledge of the regulation and the policy; the doctrine of estoppel cannot be used to expand the coverage. 332 U.S. at 384-385, 68" }, { "docid": "530788", "title": "", "text": "so even though, as here, the agent himself may have been unaware of the limitations upon his authority. Id. at 383, 68 S.Ct. 1 (emphasis added). The Court then noted that, [i]f the Federal Crop Insurance Act had by explicit language prohibited the insurance of spring wheat which is reseeded on winter wheat acreage, the ignorance of such a restriction, either by the respondents or the [FCIC’s] agent, would be immaterial and recovery could not be had against the [FCIC] for loss of such reseeded wheat. Id. at 384, 68 S.Ct. 1. The same analysis would apply to federal regulations: “[T]he Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance.” Id. at 385, 68 S.Ct. 1. Because there was in fact a regulation that precluded recovery for the loss of the reseeded wheat, the respondents were essentially out of luck. See id. at 385-86, 68 S.Ct. 1. In their papers, Plaintiffs essentially argue that Merrill should be narrowly construed — i.e., that the FCIC was held not liable only because the respondents had constructive notice through the regulations that they were barred from getting recovery for the loss of the reseeded wheat, in spite of what the FCIC’s agent said. See Docket No. 69 (Opp’n at 6). While Plaintiffs’ position is not an unreasonable one given the underlying facts in Merrill, courts have not construed Merrill so restrictively. Instead, courts have focused n the broad statement in Merrill that “anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” Merrill, 332 U.S. at 383, 68 S.Ct. 1 (emphasis added). Based on this language, most courts — including the Ninth Circuit — have held that a federal government entity cannot be held responsible for the unauthorized acts of an agent. Accordingly, an agent must have actual authority to act, as opposed to just" }, { "docid": "1419453", "title": "", "text": "Manns obtained an extension of time to file their insurance claim with the FCIC. In January 1981, they sold 216,636 pounds of their peanuts, retaining 173,993 pounds for seed, to the Hubbard Peanut Company for the support price (.226 cents per pound) plus forty cents per pound (approximately 62 cents per pound total). On this sale, the Manns realized $84,062.80 above the support price. When the plaintiffs submitted their claim to the FCIC, they failed to deduct the proceeds received above the support price. This present dispute has arisen because the FCIC maintains that the insurance coverage is for a dollar amount on each unit of peanuts insured, and any profits above the support price must be set off against the insurance proceeds. The plaintiffs maintain, however, that the excess amount represents a “seed and drayage bonus” rendered for extra services and care provided by the farmer. The Manns submit that, in the past, FCIC has not counted this bonus against the insurance proceeds and that certain agents of FCIC represented to plain tiffs that this practice of not reducing insurance proceeds by the bonus would continue in 1980. The trial court found that plaintiffs incurred the expense of storage, additional insurance and labor costs, and assumed the risk of loss from damage to the peanuts during storage. Further, the court found that to allow the FCIC to count the “bonus” against the fair market value of the crop would be to allow the corporation to act inconsistently with its previous practices and rulings, thereby allowing the FCIC to be unjustly enriched while the farmer bore the risk of loss. The court awarded plaintiffs $84,062.80 plus interest from January 29, 1981. The FCIC has appealed this judgment making the argument that: (a) the amount received by plaintiffs over the support price is not a “bonus” in keeping with its past practices, rather it is a profit, and (b) the purpose of the FCIC is to create a stable marketplace by insuring at the support price, thereby the FCIC insures against loss. It does not insure a farmer’s profits. II The" }, { "docid": "22469528", "title": "", "text": "the improper payments. We affirm but base our decision on a different rationale. Traditionally, estoppel against the government has not been favored. The leading case expressing the limitations of equitable estoppel against the government is Merrill, supra. In Merrill a partnership engaged in wheat farming applied to the Federal Crop Insurance Corp. (FCIC), a wholly owned government enterprise, for crop insurance. The local agent advised the Merrills that their entire crop was insurable, but after part of the crop was destroyed the FCIC refused to compensate them. The FCIC claimed that its regulations did not permit insurance on their type of wheat and the local agent’s advice was incorrect. The Merrills argued that the agency should be estopped from denying liability, but the Supreme Court ruled that the Merrills had constructive notice that the agency’s regulations did not permit insurance on their type of crop. The Court refused to estop the government because of the unauthorized statements made by the local agent. Merrill undoubtedly stands for a restrictive notion of the applicability of the estoppel defense against the government. But we do not read the decision as completely foreclosing the use of the estoppel defense. It should be noted that in Merrill, the farmers had no alternate means of obtaining crop insurance since there were no private companies in that business and therefore, they did not rely to their detriment on the erroneous advice. Thus, although the case presents some hardship, the Merrills did not sustain a profound, unconscionable injury in relying on the local agent’s erroneous advice. We think the estoppel doctrine is applicable to the United States where justice and fair play require it. The Supreme Court applied this rationale in Moser v. United States, 341 U.S. 41, 71 S.Ct. 553, 95 L.Ed. 729 (1951). In Moser a Swiss citizen who was registered in New York City under Selective Service asked the Swiss Legation concerning his deferment from military service in the United States Armed Forces. Moser was told that he could claim exemption under the Treaty of 1850 between the United States and Switzerland. Our State Department," }, { "docid": "4155016", "title": "", "text": "factors applied under the FTCA, classification as a government entity in this context turns on whether estoppel would thwart congressional intent: When a court applies broad notions of promissory estoppel to bind a congres-sionally created entity to the unauthorized words or deeds of an official of that entity, the court may thwart the congressional intent embodied in the prescribed nature of, and limitations on, that entity’s authority.... A decision to treat FHLMC as if it were a private employer for purposes of promissory estoppel would undermine this congressional intent [that FHLMC be considered a federal entity for employment relations purposes], McCauley, 732 F.2d at 982; see also United States v. Medico Industries, Inc., 784 F.2d 840, 845 (7th Cir.1986) (“As with other claims of estoppel against the government, the question is: ‘Who is in charge here, Congress and the President or subordinate officials?’ ”). The court in McCauley held that estoppel could not be applied against the FHLMC to make it liable for breach of an employment contract on the basis of certain unauthorized representations by FHLMC officials. In Merrill the Supreme Court stated that “anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” 332 U.S. at 384-85, 68 S.Ct. at 3-4. Agents of the Federal Crop Insurance Corporation in that case had erroneously informed plaintiffs that their wheat crop was insurable. The Court held that the FCIC was a federal instrumentality, and as such, it could not be bound by its agents’ misrepresentations beyond the scope of their authority, nor estopped from enforcing its crop insurance requirements. The Supreme Court has consistently upheld the general principle that federal instrumentalities cannot be es-topped by persons acting beyond their authority, though it has declined to declare explicitly that the no-estoppel rule is without exception. See, e.g., Heckler v. Community Health Services, Inc., 467 U.S. 51, 63, 104 S.Ct. 2218, 2225, 81 L.Ed.2d 42 (1984) (“[TJhose who deal with the Government ... may not rely on the conduct of Government" }, { "docid": "1419460", "title": "", "text": "at trial, however, that their statements were made before the surge in the market price and that they both were referring to the “seed and drayage bonus” for services that had not been counted in the past, not a forty cent profit due to abnormal market conditions. An agent of the FCIC could not extend crop insurance where there was none because the doctrine of estoppel cannot extend the coverage beyond that authorized by Congress and the rules promulgated by the FCIC. FCIC v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The regulations and the policy stated that the threshed and sold crop is to be valued at gross receipt or fair market value. The FCIC valued the crop according to the explicit language of the regulations and policy and the valuation was not contrary to past practices and policies of the agency. The farmer is charged with knowledge of the regulation and the policy; the doctrine of estoppel cannot be used to expand the coverage. 332 U.S. at 384-385, 68 S.Ct. at 3-4. IV The Manns received the $29,123.52 they were entitled to under the terms of their policy and the regulations. Because the policy coverage could not be extended by estoppel and because the FCIC used the proper method of valuation, we find that the plaintiffs have received all that is due them; accordingly, we reverse the judgment of the district court. REVERSED. . The Manns failed to deduct an amount of $76,797.58. There is a discrepancy of $7,265.22 between the amount received and awarded, $84,062.80, and the amount in dispute, $76,-797.58. This discrepancy arises because the peanuts are insured, and the insurance computed against, separate units, not the entire acreage. 7 C.F.R. § 425.7(d)(8)(b) (1980). On one unit, Unit 7, the Manns actually received $7,265.22 more than the insurance coverage on the unit. This amount is recognized by both parties as profit, but because the insurance is computed on each unit separately, it is not charged against the coverage on other units where losses were sustained. . Crop insurance does not cover the" }, { "docid": "13865971", "title": "", "text": "insurance on a crop of growing wheat. Although the Committee was correctly informed that 400 acres consisted of reseeded winter wheat acreage, it erroneously advised the growers that, the entire crop was insurable, and upon its recommendation, the Corporation accepted the application. The crop was. destroyed by drought, but the Corpora— tion refused to pay the loss on the ground that the Wheat Crop Insurance Regulations did not authorize insurance of reseeded wheat and, hence, barred recovery as a matter of law. The Supreme Court sustained the contention and reversed the court of appeals which had affirmed the district court. The following language of the opinion, I feel, is applicable in the instant case as well: “The case no doubt presents phases of hardship. We take for granted that, on the basis of what they were told by the Corporation’s local agent, the respondents reasonably believed that their entire crop was covered by petitioner’s insurance. And so we assume that recovery could be had against a private insurance company. But the Corporation is not a private insurance company. It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprise or engages in competition with private ventures. Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. The Government may carry on its operations through conventional executive agencies or through corporate forms especially created for defined ends. See Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 390, 59 S.Ct. 516, 518, 83 L.Ed. 784. Whatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power." }, { "docid": "3613425", "title": "", "text": "to insure a farmer’s investment, not his profits. Mann v. FCIC, 710 F.2d 144, 147 (4th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984) (farmer’s indemnity must be offset by entire value of peanuts produced, including amount grained by storing production for a time). Plaintiffs agree that the insurance policy at issue is intended only to insure Plaintiffs’ investment, not their profits. All of Plaintiffs’ marketed production must be counted under the plain language of the policy. There is no further indemnity due Plaintiffs. Defendants properly calculated and rendered the indemnity due Plaintiffs. Plaintiffs claim that the adjusters for Defendants instructed them to harvest and implied that the harvest would not offset against the indemnity. Besides being irrelevant where there is clear and unambiguous policy language, see infra p. 1290, this assertion is also contrary to the April 20, 1993 deposition testimony of John Walpole. In his deposition, John Walpole, a Plaintiff in this action, as well as the head of Plaintiffs’ farming operations, testified in his April 20, 1998 deposition: “And I think the big issue was whether I — what should I do; should I continue harvesting, or should I just send everybody back home.” John Walpole Deposition, p. 69 (lines 18-20). When asked if the adjuster told him what his options were, he said, “No, he didn’t.” Id. at p. 73 (line 23). While the adjusters were present on the farm reviewing the damage, it was clear to all present that there was a dispute as to the coverage provided by the policy, according to Mr. Walpole’s testimony. Id. at p. 77 (line 19)-78 (line 6) & p. 78 (lines 17-23). Mr. Walpole further testified that the adjuster commented he knew Mr. Walpole would harvest the crop. Id. at p. 79 (lines 3^1). In response, Mr. Walpole said, “I didn’t plant that crop ... for insurance coverage, I’m a farmer and I know what I’ve got to do, I’ve got to salvage, I got to do the best I can.” Id. (lines 4-7). To this, he testified the adjuster responded, “You just" }, { "docid": "1419458", "title": "", "text": "previous year. The chief of contract development for the FCIC testified that over 1000 claims had to be recomputed and insurance proceeds reduced because farmers had failed to include these inflated profits when making their claims to crop insurance. In a freak market, such as this, the best indication of fair market value is the gross receipt. Second, the purpose of the FCIC is to insure a stable ground floor for the price of a commodity, thereby protecting farmers against loss resulting from unavoidable causes such as drought. 7 U.S.C. § 1508(a). It was not the intent of Congress to insure profits, but to prevent disastrous losses. Third, the FCIC used nationwide the gross receipt method of valuation provided for in the policy and the regulations. Even if it were not an accurate reflection of the fair market value, it is what is called for under the regulations and the policy. Fourth, while the Corporation had not counted a “seed and drayage bonus” in other years, the amount in dispute here is not such a “bonus”. Harvey J. Hubbard, Jr., the purchaser of Mann’s peanuts’, testified that the price he paid for the peanuts did not include a “bonus” or premium for services, rather it reflected the going market rate for peanuts. The receipt from the sale has no notation regarding a bonus for seed or drayage. We therefore find that the valuation by the FCIC under 7 C.F.R. § 425.7(d)(8)(c)(l) at the gross receipt was the proper method of valuation. Thus, the Manns were due $29,123.52 under their FCIC policy. This amount, according to the record, has already been paid. Ill The Manns have argued that if we were to find adversely to them on the issue of valuation, they should still prevail because the FCIC is estopped from deducting the forty cents per pound from the policy amount. Their estoppel argument is based upon statements by an FCIC insurance agent and field adjustment supervisor. The Manns state, and the FCIC agrees, that these men told the Manns that “bonuses” would not be counted in 1980. These agents testified" }, { "docid": "1047248", "title": "", "text": "he asked for a greater indemnity, but that each request was met by a retendering of the “filled in claim form.” However, plaintiff does not allege that he ever asked for or otherwise sought a blank claim form as a prudent man might be expected to do in these circumstances. Further, he did not attempt to cross out the amount listed by the defendant’s representative and substitute the amount he felt entitled to claim. Finally he delayed until June, 1967 before filing this action. In view of the decided cases these factors make it impossible for the court to carve out any exception to the clear requirement of 7 C.F.R. § 401.11(11) (a). This court is bound by the decisions of the United States Supreme Court and particularly the case of Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), wherein the court stated: “ * * * And so we assume that recovery could be had against a private insurance company. But the Corporation is not a private insurance company. It is too late in the day to urge that the Government is just another private litigant, for purposes of charging it with liability, whenever it takes over a business theretofore conducted by private enterprise or engages in competition with private ventures. Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it. * * * anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. * * * * * #- * * * Accordingly, the Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance. The oft-quoted observation in Rock Island, Arkansas & Louisiana R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct." } ]

[ { "docid": "23136051", "title": "", "text": "recognize the political rights of the membership of the union as part of their fiduciary responsibility. Pignotti v. Local 3, Sheet Metal Workers, 477 F.2d at 832-35; Comment, The Fiduciary Duty Under Section 501 of the LMRDA, 75 Col.L.R. 1188, 1204-05 (1975). Nevertheless, the court in Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972), noted: Courts are reluctant to substitute their judgment for that of union officials in the interpretation of the union’s constitution, and will interfere only where the official’s interpretation is not fair or reasonable. See Local Union No. 657 v. Sidell, 552 F.2d at 1257; Gordon v. Laborers’ International Union of North America, 490 F.2d 133, 137 (10th Cir. 1973), cert. denied, 419 U.S. 836, 95 S.Ct. 63, 42 L.Ed.2d 62 (1974). This conclusion is not inconsistent with our decision in Kerr v. Shanks, 466 F.2d 1271 (9th Cir. 1972), where we found that the union officials’ failure to hold a referendum within 20 days of the filing of a petition was a violation of a provision of the union constitution explicitly requiring a timely referendum. The defendants’ contention that another constitutional provision gave full force and effect to the challenged action of the union board until the referendum was held was found insufficient to justify the defendants’ actions when read in conjunction with the mandatory referendum provision. Viewing the constitution as a whole, we found the union’s interpretation unreasonable. Appellees’ interpretation of the constitution is not patently unreasonable. As noted in Parks v. I.B.E.W., 314 F.2d 886, 893 (4th Cir. 1963), where the Fourth Circuit extensively reviewed the structure of the IBEW: Actually, effective control of IBEW activities is entrusted to the IP . He is empowered ... to enter into agreements with national or international labor organizations or associations of employers. And all bylaws, amendments and rules and all agreements of any kind are null and void unless approved by the IP who has the right to “correct” them to conform to the IBEW’s Constitution and policies. (Art. XVII, §§ 7-9)." } ]

[ { "docid": "836620", "title": "", "text": "argument attacks the refusal of the International to call for a referendum on the merger question. A referendum is required if the district is self-supporting. The Executive Board of the International found that District 22 was not self-supporting. The attack of the plaintiffs can go only to the reasonableness of the pertinent constitutional provision. Nothing before us establishes that the distinction between self-supporting and non-self-supporting districts is unreasonable or that the requirement of self-support has been unequally applied to discriminate against anyone or any district. LMRDA is remedial legislation and as such should be liberally construed. International Brotherhood of Boilermakers, etc. v. Braswell, 5 Cir., 388 F.2d 193, 200-201, cert. denied 391 U.S. 935, 88 S.Ct. 1848, 20 L.Ed.2d 854. It does not, however, purport to project absolute judicial control over the internal management of unions. Schuchardt v. Millwrights & Machinery Erectors, Local 2834, 10 Cir., 380 F.2d 795, 797. The rights granted by the Act are specific. Congress did not intend that the Act be an invitation to the courts to intervene at will in the internal affairs of unions. Williams v. International Typographical Union, 10 Cir., 423 F.2d 1295, 1297, cert. denied 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53. There is no allegation and no proof that the constitutional provision before us is unfair or unreasonable or that it has been applied discriminatorily. See Vestal v. Hoffa, 6 Cir., 451 F.2d 706, 709, cert. denied 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135. LMRDA does not confer federal jurisdiction over the suit at bar. The trial court also found federal jurisdiction under 28 U.S.C. § 1331 (federal question) and §§ 2201 and 2202 (declaratory judgments). We have held that there is no subject-matter jurisdiction under either LMRA or LMRDA. It follows that there is no federal question which would sustain federal question jurisdiction under the mentioned sections. Reversed and remanded with directions to dismiss the action." }, { "docid": "23102686", "title": "", "text": "of union constitutions. See, e.g,, Newell v. International Bhd. of Electrical Workers, 789 F.2d 1186, 1189 (5th Cir.1986) (union’s construction of its own constitution will not be invalidated unless “patently unreasonable”); Local 334, Etc. v. United Ass’n of Journeymen, 669 F.2d 129, 131 (3d Cir.1982) (similar); Local Union No. 657, UBCJA v. Sidell, 552 F.2d 1250, 1256-57 (7th Cir.) (similar), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); see also Motion Picture, 800 F.2d at 975. Leaving to one side the issue of bad faith, discussed infra Part V, we will uphold the International’s interpretation of its own governance documents unless that interpretation is patently unreasonable. To be sure, some circuits have articulated the test in less rigorous terms, see, e.g., Millwright Local No. 1079 v. UBCJA, 878 F.2d 960, 962 (6th Cir.) (suggesting that union’s interpretation must be “fair” and “reasonable”), cert. denied, _ U.S. _, 110 S.Ct. 407, 107 L.Ed.2d 373 (1989); Local 317, Nat. Post Office Mail Handlers v. National Post Office Mail Handlers, 696 F.2d 1300, 1302 (11th Cir.1983) (same). Yet, whatever the specific formulation of the test, the circuits are in agreement that the proper focus of judicial inquiry is on the reasonableness of the union’s interpretation of its constitution at the time of the decision, not on a post hoc evaluation of the reasonableness of the underlying action. In other words, the critical question, uniformly, is whether the stated reason for the action was facially sufficient under the instrument of governance, or put another way, “whether there was arguable authority for the officer’s act from the officer’s viewpoint at the time_” Stelling v. International Bhd. of Elec. Workers, Local 1547, 587 F.2d 1379, 1389 n. 10 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979). If this query is answered in the affirmative, further judicial scrutiny of the decision, absent bad faith, is foreclosed. Here, the International advanced a rational explanation for the exercise of its constitutional authority to act, consistent with the letter of Section 6-A. Not only does the language of the provision" }, { "docid": "21595425", "title": "", "text": "are reluctant to substitute their judgment for that of union officials in the interpretation of the union’s constitution, and will interfere only where the official’s interpretation is not fair or reasonable.” Millwright Local No. 1079 v. United Bhd. of Carpenters and Joiners, 878 F.2d 960, 962, (6th Cir.), cert. denied, — U.S. -, 110 S.Ct. 407, 107 L.Ed.2d 373 (1989) (quoting Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972)). B. “Title I of the LMRDA and specifically section 101, 29 U.S.C. § 411, is the ‘Bill of Rights’ for union members.” Knisley v. Teamsters Local 654, 844 F.2d 387, 389 (6th Cir.1988) (per curiam). Title I protects rank and file union members who speak out against union leaders or who seek elective union offices. United Steelworkers of America v. Sadlowski, 457 U.S. 102, 109, 102 S.Ct. 2339, 2344, 72 L.Ed.2d 707 (1982). It guarantees every union member the rights of free speech and assembly and equal voting rights. Title I also provides for private enforcement actions to further the primary objective of the LMRDA; viz., “ensuring that unions [are] democratically governed and responsive to the will of their memberships.” Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 109 S.Ct. 639, 643, 102 L.Ed.2d 700 (1989) (quoting Finnegan v. Leu, 456 U.S. 431, 436, 102 S.Ct. 1867, 1870, 72 L.Ed.2d 239 (1982)). Title I protects those rights that are fundamental to union membership — “membership rights,” as opposed to any “job rights” that might arise from a particular union member’s employment on the union’s appointed staff. Title I did not create “a system of job security or tenure for appointed union employees.” Finnegan, 456 U.S. at 438, 102 S.Ct. at 1871. As we have explained: “Any union member is certainly entitled to disagree with the union’s policy. However, when persons chosen by the union leadership are appointed to effectuate that policy, elected union officers are investing the appointee with the trust of the membership. When that trust is lost, not only will the appointee be subject" }, { "docid": "5662133", "title": "", "text": "the B&M “with an unauthorized, appointed, non-elected negotiating committee” is wholly irrelevant to the damages claimed and remedies sought by plaintiffs, which are related wholly to the union’s decision to accept binding arbitration (which was made by the International Union President or his representative) and the resulting award itself. The evidence shows that any negotiating in which Carbone might have engaged with such a Committee took place prior to and was wholly separate from the arbitration proceedings. In fact, General Chairman Carbone’s negotiations were aborted when the International Vice President agreed to arbitration and consequently Mr. Carbone’s negotiations produced no agreement of any kind which could aggrieve anyone or give rise to any claim of damages by anyone. Plaintiffs’ may argue that Mr. Carbone’s “unauthorized” signing of the arbitration agreement amounts to “arbitrary, discriminatory, or bad faith conduct.” Even assuming this were the case, no damage would have resulted to the plaintiffs, for Mr. Lyden’s clearly authorized signing of that agreement in no manner amounts to conduct violating the Faca standard. It thus would be pointless to submit Mr. Carbone’s conduct to the jury under Count 3 particularly where the members of the General Committee ratified his signing by a 15-4 vote as noted above. I have already ruled that there has been no evidence of bad faith submitted regarding President Hardin and the UTU Board of Director’s handling of the question of whether the ratification amendment of Article 85 applied to Mr. Carbone’s actions. I further rule that there has been no evidence submitted which tends to establish this conduct as arbitrary or discriminatory toward the plaintiffs. Despite Mr. Lenfest’s conclusory opinion that Messrs. McNamara, Chesser, Lyden, and Hardin all acted in “bad faith” and “against the best interests of the union membership” in the actions they took with respect to the acceptance of arbitration (see Trial Transcript at (3) 149-52), there has been absolutely no relevant evidence submitted to support this claim. Accordingly, I rule that the union’s motion for a directed verdict on Count 3 should be granted. Count 2 Count 2 of the complaint, which is" }, { "docid": "6369215", "title": "", "text": "prerequisite — payment of dues — to maintain their good standing. The result is that members on layoff are barred from participating in all union matters regardless of their willingness to pay dues or the extent to which the union matters may compromise, or as here, nearly extinguish, their rights. We reach a more limited issue: the reasonableness of the application of the good standing provision to preclude laid-off employees from voting on the alteration of their recall rights. The Supreme Court has indicated that the test of reasonableness under Title IV of the Act (which deals with the election of union officers) (section 411 is a part of Title I) is a balance between the “anti-democratic effects” of the challenged rule and the “[union] interests urged in its support.” United Steelworkers v. Usery, 429 U.S. 305, 310, 97 S.Ct. 611, 615, 50 L.Ed.2d 502 (1977). Since the good standing rules are challenged here as applied to bar a group of members from voting, we see no principled reason why that test should not also guide our inquiry in this case. Against that background, we are reminded by the union of the policy against judicial interference in the internal affairs of unions. Local 657, United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1254 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Rota v. Brotherhood of Railway, Airline & Steamship Clerks, 489 F.2d 998, 1003 (7th Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 896, 39 L.Ed.2d 99 (1974). Therefore, we approach our resolution of this issue fully conscious of, and with respect for, the interests that underlie that policy. Generally, internal union matters should be left to the union and its members. We have no desire to try to constitute this court as an “ex officio” union member with powers not accorded actual union members. In Williams v. Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the tenth circuit considered the reasonableness of a union constitutional provision that barred members classified" }, { "docid": "5662118", "title": "", "text": "to act without the prior approval of the General Committee once he has been called in under Article 85 to assist the General Chairman. I rule that a clear grant of authority in the Constitution may be used when the President decides to do so even if on prior occasions with different facts he has elected to travel a different route also authorized by the Constitution. The UTU Constitution itself provides definitive guidance for the making of the determination of whether the International representatives acted within their Article 85 powers. Article 16 of that Constitution gives the International President the power to “interpret all laws of the organization, [and] decide all questions arising therefrom . . . . ” As Mr. Lenfest admitted at trial, Mr. Chesser obviously made the determination that he had the power under Article 85 to ask for and accept a proffer of arbitration without getting the approval of the General Committee. (Trial Transcript at (3) 150.) Further, in a letter of May 27, 1980 from President Hardin to Vice President Lyden (Plaintiffs’ Exhibit 74), Mr. Hardin stated that it was Mr. McNamara who originally accepted arbitration on behalf of the union, and that Mr. Lyden had been appointed upon Mr. McNamara’s retirement to “finalize the agreement.” He stated: “Vice President McNamara was assigned under the provisions of Article 85 of our Constitution, and under those provisions the Vice President has the same authority as the General Committee. In view of this it would be no requirement that [the Agreement to Arbitrate] be ratified.” Thus all of the actions undertaken by International representatives which the plaintiffs claim were unauthorized under Article 85 have been approved by the International President under Article 16. Interpretations of union constitutions by union officials are by no means absolutely insulated from review in a court of law. However, the applicable law, which is based on a general and well-recognized policy of judicial non-interference with the judgment of union officials and tribunals having responsibility for the interpretation of a union’s constitution, holds that absent a demonstration of bad faith, such interpretations will" }, { "docid": "23136035", "title": "", "text": "§ 301 based on asserted violations of a union constitution. However, in each case where a constitution has provided the basis for jurisdiction, the court has specifically found that the controversy had either “traumatic industrial and economic repercussions,” Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 916 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963) (action by local against international for rescission of local’s charter), or significantly affected labor-management relations, as where the dispute affected the representation of workers in collective bargaining. Local Union 1219, United Brotherhood of Carpenters v. United Brotherhood of Carpenters, 493 F.2d 93, 96 (1st Cir. 1974); Local Union No. 657 of United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1256 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977). See Keck v. Employees Independent Association, 387 F.Supp. 241 (E.D.Pa.1974). Other courts have ruled that union constitutions do not provide a jurisdictional basis where the underlying controversy was strictly intra-union and unrelated to external labor-management relations. In 1199 DC, National Union of Hospital and Health Care Employees v. Nat’l Union of Hospital and Health Care Employees, 175 U.S.App.D.C. 70, 533 F.2d 1205 (1976), the union local and individual members sued the parent unions alleging that a merger of locals violated the constitution. The court found no jurisdiction under § 301 because plaintiffs had not asserted any effect on collective bargaining or on relations with employers, therefore the dispute was deemed intraunion. In Smith v. United Mine Workers, 493 F.2d 1241 (10th Cir. 1974), union members sued the international contending that the merger of intermediate districts within the union violated the constitution. The 10th Circuit found no jurisdiction because the dispute was strictly intra-union and stated: [Section] 301(a) must be liberally applied to promote industrial peace, but that principle has no application here. This controversy relates only to the construction and application of the union constitution and has nothing to do with labor-management relations. 493 F.2d at 1243. The focus of these cases on the effect of the controversy on external labor relations" }, { "docid": "6369216", "title": "", "text": "guide our inquiry in this case. Against that background, we are reminded by the union of the policy against judicial interference in the internal affairs of unions. Local 657, United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1254 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Rota v. Brotherhood of Railway, Airline & Steamship Clerks, 489 F.2d 998, 1003 (7th Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 896, 39 L.Ed.2d 99 (1974). Therefore, we approach our resolution of this issue fully conscious of, and with respect for, the interests that underlie that policy. Generally, internal union matters should be left to the union and its members. We have no desire to try to constitute this court as an “ex officio” union member with powers not accorded actual union members. In Williams v. Typographical Union, 423 F.2d 1295 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the tenth circuit considered the reasonableness of a union constitutional provision that barred members classified as “not working at the trade” from voting on any and all union matters. A union member employed on a full-time basis in another field challenged his disfranchisement. Despite the broad ambit of the challenged union rule, the court limited inquiry to the rule’s application to voting on wage scales. Since “those not primarily dependent on the printing business for their livelihood . do not have the vital interest in wage scales which is present in those who are first and foremost printers . . . [w]e believe that the regulation is reasonable and does not violate the Act.” Id. at 1298. Unlike the attenuated interest of the plaintiff in Williams, the interest of laid-off workers in matters that will alter or effectively extinguish their recall rights is a most vital one. Recall rights represent the laid-off employees’ only hope of once again pursuing their livelihood in the company where they have been employed and have acquired a degree of seniority. The Local represented both Tube and Motor employees but those employees had interests that" }, { "docid": "8576101", "title": "", "text": "time members of the IBEW and not to travelers. We disagree. The title of Article XXII is “Admission of Members.” Some of the provisions of Article XXII, such as the oath taking provision, obviously apply only to new members and not travelers. But this is not true of all sections of the Article. For example, Section 1 of Article XXII provides that no local “can admit any applicant ... indebted to any [local union.]” This clause of Article XXII apparently applies to a traveling member of another local who is indebted to his home local. We are not persuaded from the explicit language of Article XXII that all of its provisions are applicable only to first time applicants of the union. Relat-edly, Article XXV does not, on its face, purport to preclude other articles of the constitution from applying to travelers. In determining whether the residency requirements of Article XXII apply to travelers such as appellants, we must give deference to the union’s interpretation of its own constitution. Courts should strive to avoid interference with internal union affairs. See Wirtz v. Glass Bottle Blowers Association, 389 U.S. 463, 470-71, 88 S.Ct. 643, 647-48, 19 L.Ed.2d 705 (1968); Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964). We will not invalidate the International’s interpretation of its own constitution unless it is “patently unreasonable.” Stelling v. IBEW, 587 F.2d 1379, 1389 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Local Union No. 657 of the United Brotherhood of Carpenters and Joiners v. Sidell, 552 F.2d 1250, 1257 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); see also Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972). As early as 1965, the IBEW’s policy guidebook reflected the interpretation of Articles XXII and XXV which the International argues for today. A statement consistent with this interpretation was included in succeeding editions of the guidebook, and the edition in effect when appellants were voted to" }, { "docid": "12550159", "title": "", "text": "such as “before,” “thereafter,” “following that,” “and then” or the like. Absent some such indication, it cannot be said that a mere listing of steps indicates an intent that they must be performed in the order listed. On the contrary, recognizing that a listing must be in some order, the absence of connective phrases or similar means of indicating an intended sequence of performance argues for the view that no particular sequence was intended and that either of the two possible sequences would be acceptable. Busch then says the intent must have been that the membership meeting vote be held first, because that sequence allows open debate on proposed amendments and an opportunity for the membership to reject proposed amendments at the meeting. Otherwise, says Busch, the requirement for a vote at a meeting would be nullified. The argument is refuted by the facts. Nothing in the procedure followed by Local here precluded open debate at the meeting. It is, moreover, arguable that debate was thereby facilitated, foes of the proposal having been alerted by the referendum and thus given additional time to prepare countering arguments. Nor was the meeting requirement nullified. If the proposed amendment had been rejected at the general membership meeting the affirmative referendum vote would have been rendered void. When, as here, the outcome is essentially unaffected by either of two reasonable interpretations of a union’s constitution, it is not the function of a court to adopt that which would undo the action of the union members. Absent bad faith or other compelling circumstance, a union’s interpretation of its constitution, as well as its interpretation of its own rules and procedures, should prevail over a court’s notion as to how the union should conduct its affairs. Stelling v. International Brotherhood of Electrical Workers, supra; Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971), cert. denied 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972); see also Gordon v. Laborers’ Int’l Union, 490 F.2d 133, 137 (10th Cir. 1973); Case v. International Bhd. of Elec. Workers, Local 1547, 438 F.Supp. 856, 862 (D. Alaska 1977);" }, { "docid": "23102685", "title": "", "text": "the internal affairs of a union.” Howard v. United Ass’n of Journeymen & Apprentices, Etc., Local No. 131, 560 F.2d 17, 21 (1st Cir.1977). Courts have neither a monopoly on fairness nor a sufficient expertise in the administration of labor organizations to warrant pervasive judicial intervention in union affairs. Hence, we agree with the Second Circuit that “[t]he internal operations of unions are to be left to the officials chosen by the members to manage those operations except in the very limited instances expressly provided for in the Act....” Gurton v. Arons, 339 F.2d 371, 375 (2d Cir.1964). This principle abides despite any opinion that a judge, or group of judges, might form concerning the wisdom of specific courses of action undertaken by unions and their democrati cally elected leadership. Cf. XIII Homer, The Iliad (“There is a strength even in the union of very sorry men.”). Conscious of the value of non-interference, we align ourselves squarely with those courts that have said judges should refrain from second-guessing labor organizations in respect to plausible interpretations of union constitutions. See, e.g,, Newell v. International Bhd. of Electrical Workers, 789 F.2d 1186, 1189 (5th Cir.1986) (union’s construction of its own constitution will not be invalidated unless “patently unreasonable”); Local 334, Etc. v. United Ass’n of Journeymen, 669 F.2d 129, 131 (3d Cir.1982) (similar); Local Union No. 657, UBCJA v. Sidell, 552 F.2d 1250, 1256-57 (7th Cir.) (similar), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); see also Motion Picture, 800 F.2d at 975. Leaving to one side the issue of bad faith, discussed infra Part V, we will uphold the International’s interpretation of its own governance documents unless that interpretation is patently unreasonable. To be sure, some circuits have articulated the test in less rigorous terms, see, e.g., Millwright Local No. 1079 v. UBCJA, 878 F.2d 960, 962 (6th Cir.) (suggesting that union’s interpretation must be “fair” and “reasonable”), cert. denied, _ U.S. _, 110 S.Ct. 407, 107 L.Ed.2d 373 (1989); Local 317, Nat. Post Office Mail Handlers v. National Post Office Mail Handlers, 696 F.2d 1300, 1302" }, { "docid": "8576102", "title": "", "text": "internal union affairs. See Wirtz v. Glass Bottle Blowers Association, 389 U.S. 463, 470-71, 88 S.Ct. 643, 647-48, 19 L.Ed.2d 705 (1968); Calhoon v. Harvey, 379 U.S. 134, 140, 85 S.Ct. 292, 296, 13 L.Ed.2d 190 (1964). We will not invalidate the International’s interpretation of its own constitution unless it is “patently unreasonable.” Stelling v. IBEW, 587 F.2d 1379, 1389 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Local Union No. 657 of the United Brotherhood of Carpenters and Joiners v. Sidell, 552 F.2d 1250, 1257 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); see also Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972). As early as 1965, the IBEW’s policy guidebook reflected the interpretation of Articles XXII and XXV which the International argues for today. A statement consistent with this interpretation was included in succeeding editions of the guidebook, and the edition in effect when appellants were voted to membership in the Laurel local provided: The ability of IBEW members to travel from one Local Union to another in search of work, and to transfer membership, is a solid benefit of our Brotherhood. No Local Union can admit an applicant who does not reside in, or is not employed at the trade in, the jurisdiction of the local, unless the Local Union is directed to admit him by the International President. We find it highly unlikely that the International, in drafting the constitution, intended to permit a local to accept any traveler for membership and upgrade his classification without regard to where the member intended to reside and work. The potential for abuse inherent in such a scheme is apparent; it would encourage a local to admit workers with no ties to its geographic area simply as a way to increase dues and raise money. If the local’s only connection with travelers it admits to membership is the collection of fees and dues, the local has little incentive to evalute their qualifications to advance" }, { "docid": "23136034", "title": "", "text": "v. Smith, 555 F.2d 1362, 1366 (9th Cir. 1976), jurisdiction depends on the nature of the action rather than the status of the parties. The mere fact that the action here is brought by individual union members does not preclude jurisdiction. Our next inquiry is whether the courts have found actions based on union constitutions cognizable under § 301. In Smith v. Evening News Association, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), the Supreme Court rejected the contention that the “between” in this section refers to “suits” rather than “contracts” and held that an individual union member could sue his employer for breach of a collective bargaining agreement. In Retail Clerks International Association v. Lion Dry Goods, Inc., 369 U.S. 17, 28, 82 S.Ct. 541, 548, 7 L.Ed.2d 503 (1962), the Court held that § 301 is not restricted in application to suits involving collective bargaining agreements, but applies also to suits based on other types of contracts “significant to the maintenance of labor peace.” Several courts have permitted actions under § 301 based on asserted violations of a union constitution. However, in each case where a constitution has provided the basis for jurisdiction, the court has specifically found that the controversy had either “traumatic industrial and economic repercussions,” Parks v. International Brotherhood of Electrical Workers, 314 F.2d 886, 916 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963) (action by local against international for rescission of local’s charter), or significantly affected labor-management relations, as where the dispute affected the representation of workers in collective bargaining. Local Union 1219, United Brotherhood of Carpenters v. United Brotherhood of Carpenters, 493 F.2d 93, 96 (1st Cir. 1974); Local Union No. 657 of United Brotherhood of Carpenters v. Sidell, 552 F.2d 1250, 1256 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977). See Keck v. Employees Independent Association, 387 F.Supp. 241 (E.D.Pa.1974). Other courts have ruled that union constitutions do not provide a jurisdictional basis where the underlying controversy was strictly intra-union and unrelated to external labor-management relations. In" }, { "docid": "5662120", "title": "", "text": "not be overturned unless they are shown to have been unfair and unreasonable. Truck Drivers v. International Brotherhood of Teamsters, 482 F.Supp. 266, 272 (D.C.Mass.1979); Stelling v. International Brotherhood of Electrical Workers, 587 F.2d 1379, 1388 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979), Local Union No. 657, Etc. v. Sidell, 552 F.2d 1250, 1256-57 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972); Gardner v. Woodcock, 384 F.Supp. 239, 247 (E.D.Mich.1974). Despite the plaintiffs’ claims to the contrary, there has been absolutely no evidence introduced that would justify a finding by the jury that Mr. McNamara, Mr. Chesser, Mr. Hardin, or Mr. Lyden acted in bad faith toward the members of the union in acting as they did. While Mr. Lenfest testified that it was his belief that all four of these men had acted in “bad faith” (Trial Transcript at (3) 149-52), no facts were presented by the plaintiffs which would justify this opinion. On the contrary, the uncontroverted testimony of Mr. McNamara was that he was motivated in his actions by a desire to achieve what he believed would be the best result for all of the union members. (Trial Transcript at (6) 61-63; 98-99). He stated without contradiction that the UTU did not want to risk the loss of 700 B&M jobs by calling a strike against the bankrupt B&M because the UTU had the prior experience of calling a strike against the bankrupt Rock Island Railroad with the result that it ceased operations and all UTU employees thereof lost their jobs. Trial Transcript at (6) 69-70. Given the negotiating impasse once striking was rejected for “Rock Island” considerations, the only other course of action open to the UTU and Vice President McNamara was binding arbitration. In light of plaintiffs’ failure to produce any objective evidence which would tend to establish the bad faith of these men, I rule that the record" }, { "docid": "21595424", "title": "", "text": "jurisdiction over Counts II and III, and found that the union did not breach its constitution or Tucker’s employment rights. The principal issues on appeal are whether the district court erred in deciding (1) that the ninety-day rule did not violate the LMRDA, and (2) that the UAW did not violate its constitution or the conditions of Tucker’s employment in discharging him. II. A. In this appeal of a district court’s grant of summary judgment on the defendants’ cross-motions for summary judgment, our role is identical to that of the district court. Hand v. Central Transport, Inc., 779 F.2d 8, 10 (6th Cir.1985) (per curiam). Our review of the district court's decision in this case is de novo since only questions of law are involved in this appeal. Pinney Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, — U.S. -, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). In this appeal, Tucker also challenges the Public Review Board’s decision upholding the ninety-day rule. We recently held that “[cjourts are reluctant to substitute their judgment for that of union officials in the interpretation of the union’s constitution, and will interfere only where the official’s interpretation is not fair or reasonable.” Millwright Local No. 1079 v. United Bhd. of Carpenters and Joiners, 878 F.2d 960, 962, (6th Cir.), cert. denied, — U.S. -, 110 S.Ct. 407, 107 L.Ed.2d 373 (1989) (quoting Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972)). B. “Title I of the LMRDA and specifically section 101, 29 U.S.C. § 411, is the ‘Bill of Rights’ for union members.” Knisley v. Teamsters Local 654, 844 F.2d 387, 389 (6th Cir.1988) (per curiam). Title I protects rank and file union members who speak out against union leaders or who seek elective union offices. United Steelworkers of America v. Sadlowski, 457 U.S. 102, 109, 102 S.Ct. 2339, 2344, 72 L.Ed.2d 707 (1982). It guarantees every union member the rights of free speech and assembly and equal voting rights. Title I also provides" }, { "docid": "1018780", "title": "", "text": "would seem to have been in violation of Section 9, but was unable to testify as to when and under what circumstances such a charter was granted. There is no evidence to indicate that the Resilient Flooring group is similar to the proposed painters’ section either in its structure or function. There is a failure’ of proof that the International has interpreted Section 9 in a different manner than it did in applying it to the proposed painters’ section By-Law amendment. Regular union procedures were followed with respect to the appeals concerning the painters’ section amendment. I refuse to find that the GEB or the International acted unfairly or unreasonable in connection therewith. The presence of Zucker, a New York employer, on the convention floor is of no significance, and plaintiffs failed to make timely protest. A Court should be exceedingly reluctant to substitute its judgment for that of union officials in the interpretation of the union’s constitution, and should interfere only where the official interpretation is unfair or unreasonable. Vestal v. Hoffa, 451 F.2d 706 (6th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135. In Gurton v. Arons, 339 F.2d 371 (2d Cir. 1964), the Court of Appeals upheld the International Executive Board of the American Federation of Musicians in voiding resolutions adopted by a subordinate body with respect to the election of officers. The Court held (p. 375 of 339 F.2d): “The provisions of the L.M.R.D.A. were not intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions. Courts have no special expertise in the operation of unions which would justify a broad power to interfere. The internal operations of unions are to be left to the officials chosen by the members to manage those operations except in the very limited instances expressly provided by the Act.” As in Gurton, supra, we find that the provisions of the International constitution under which the GEB acted are not arbitrary or unreasonable, nor is the interpretation which has been placed thereupon. For that reason and" }, { "docid": "15655881", "title": "", "text": "not to regulate strictly intraunion affairs, the requirement that for an agreement to be a “contract” within the meaning of section 301, it must have some effect on external labor-employer relationships. Thus, several cases have found that section 301 did not confer jurisdiction because the dispute was merely an intraunion matter and did not involve a threat to industrial peace. See, e. g., Stelling v. IBEW Local 1547, 587 F.2d 1379, 1382-84 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979); Trail v. International Brotherhood of Teamsters, 542 F.2d 961, 966-68 (6th Cir. 1976); 1199 DC, National Union of Hospital & Health Care Employees v. National Union of Hospital & Health Care Employees, 533 F.2d 1205, 1207-08 (D.C.Cir. 1976); Smith v. UMW, 493 F.2d 1241, 1242-44 (10th Cir. 1974); Hotel & Restaurant Employees Local 400 v. Svacek, 431 F.2d 705, 706 (9th Cir. 1970). Other cases have reached the apparently contradictory conclusion that there was section 301 jurisdiction, but in these cases the courts found that a genuine impact on industrial peace had been adequately alleged. See, e. g., Abrams v. Carrier Corp., 434 F.2d 1234, 1247-49 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971); Parks v. IBEW, 314 F.2d 886, 914-17 (4th Cir.), cert. denied, 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); cf. Local 657, United Brotherhood of Carpenters & Joiners v. Sidell, 552 F.2d 1250, 1252-56 (7th Cir.) (suit by local against parent union under section 301(a) alleging violation of parent union’s constitution), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Local 1219, United Brotherhood of Carpenters & Joiners v. United Brotherhood of Carpenters & Joiners, 493 F.2d 93, 95-96 (1st Cir. 1974) (same). So, while those other circuits have reached different results in cases involving jurisdiction based on parent union constitutions, the conflict is only one of result and not one of the method of analysis. We follow the decisions cited above and hold that for purposes of conferring jurisdiction under section 301, the alleged violation must" }, { "docid": "7288464", "title": "", "text": "13 F.R.D. 280 (D.D.C.1952); see also Advance Labor Service, Inc. v. Hartford Accident & Indem. Co., 60 F.R.D. 632 (N.D.Ill.1973). Extending this principle to cover the relationship between an International union and its locals, however, is not consistent with federal labor law. Because the locals and the International are separate “labor organizations” within the meaning of both the National Labor Relations Act, 29 U.S.C. § 152(5), and the LMRDA, 29 U.S.C. § 402(i), their relationship is governed by the IUPIW constitution, which is a “contract between labor organizations.” United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry v. Local 334, 452 U.S. 615, 619, 101 S.Ct. 2546, 2548, 69 L.Ed.2d 280 (1981). We must look to that document and its interpretation to resolve the issue of control. A union’s construction of its own constitution is entitled to a certain measure of deference. See Lucas v. Bechtel Corp., 800 F.2d 839, 850 (9th Cir.1986) (“when union officials have offered a reasonable construction of the constitution, and no bad faith on their part has been shown, the courts should not disturb the union officials’ interpretation.”) (quoting Stelling v. International Brotherhood of Electrical Workers, Local Union Number 1547, 587 F.2d 1379, 1389 (9th Cir.1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979)). In general, judicial interference in intra-union affairs should be undertaken only with great reluctance, Stelling, 587 F.2d at 1387, for “in ... enforcing statutory standards, great care should be taken not to undermine union self-government.” S.Rep. No. 187, 86th Cong., 1st Sess. 5 (1959) at 7, reprinted at I N.L.R.B., Leg. History of LMRDA, at 402-03. No section of the IUPIW constitution expressly gives the International the right to obtain locals’ delegate election records upon demand. DOL urges us to read several disparate provisions of the constitution together, believing this will lead us to conclude that the locals are mere subsidiaries of the International and that the International does enjoy the right to demand election documents. None of these sections seem intended to hinder locals’ right and ability to maintain their own delegate election" }, { "docid": "5662119", "title": "", "text": "Lyden (Plaintiffs’ Exhibit 74), Mr. Hardin stated that it was Mr. McNamara who originally accepted arbitration on behalf of the union, and that Mr. Lyden had been appointed upon Mr. McNamara’s retirement to “finalize the agreement.” He stated: “Vice President McNamara was assigned under the provisions of Article 85 of our Constitution, and under those provisions the Vice President has the same authority as the General Committee. In view of this it would be no requirement that [the Agreement to Arbitrate] be ratified.” Thus all of the actions undertaken by International representatives which the plaintiffs claim were unauthorized under Article 85 have been approved by the International President under Article 16. Interpretations of union constitutions by union officials are by no means absolutely insulated from review in a court of law. However, the applicable law, which is based on a general and well-recognized policy of judicial non-interference with the judgment of union officials and tribunals having responsibility for the interpretation of a union’s constitution, holds that absent a demonstration of bad faith, such interpretations will not be overturned unless they are shown to have been unfair and unreasonable. Truck Drivers v. International Brotherhood of Teamsters, 482 F.Supp. 266, 272 (D.C.Mass.1979); Stelling v. International Brotherhood of Electrical Workers, 587 F.2d 1379, 1388 (9th Cir. 1978), cert. denied, 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979), Local Union No. 657, Etc. v. Sidell, 552 F.2d 1250, 1256-57 (7th Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977); Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972); Gardner v. Woodcock, 384 F.Supp. 239, 247 (E.D.Mich.1974). Despite the plaintiffs’ claims to the contrary, there has been absolutely no evidence introduced that would justify a finding by the jury that Mr. McNamara, Mr. Chesser, Mr. Hardin, or Mr. Lyden acted in bad faith toward the members of the union in acting as they did. While Mr. Lenfest testified that it was his belief that all four of these men had acted in “bad faith” (Trial Transcript" }, { "docid": "12550160", "title": "", "text": "the referendum and thus given additional time to prepare countering arguments. Nor was the meeting requirement nullified. If the proposed amendment had been rejected at the general membership meeting the affirmative referendum vote would have been rendered void. When, as here, the outcome is essentially unaffected by either of two reasonable interpretations of a union’s constitution, it is not the function of a court to adopt that which would undo the action of the union members. Absent bad faith or other compelling circumstance, a union’s interpretation of its constitution, as well as its interpretation of its own rules and procedures, should prevail over a court’s notion as to how the union should conduct its affairs. Stelling v. International Brotherhood of Electrical Workers, supra; Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971), cert. denied 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972); see also Gordon v. Laborers’ Int’l Union, 490 F.2d 133, 137 (10th Cir. 1973); Case v. International Bhd. of Elec. Workers, Local 1547, 438 F.Supp. 856, 862 (D. Alaska 1977); cf. International Bhd. of Boilermakers v. Hardeman, 401 U.S. 233, 242-43, 91 S.Ct. 609, 615, 28 L.Ed.2d 10 (1971); Local 357, International Bhd. of Teamsters v. NLRB, 365 U.S. 667, 676, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961). In sum, Local’s Constitution insures two opportunities to defeat a proposed amendment. Both opportunities were provided to Busch. Local’s choice between the two possible sequences in which to provide those opportunities has not been shown violative of any provision of Local’s Constitution. Hence Givens’ refusal to fund attendance of Busch at the convention was not a violation of his fiduciary duty under the Act. Conclusion We hold the District Court’s interpretation, that Article XVI requires first a general membership vote and then a referendum, to have been error. Local having performed the required amending steps, its Constitution was validly amended in 1978. The injunction ordering Givens to fund the attendance of delegates in a manner required under Local’s 1974 Constitution was granted in error. INJUNCTION VACATED. . Article IX, Section 8 of the 1974 Constitution, as" } ]

[ { "docid": "22684271", "title": "", "text": "also noted that petitioners’ collective-bargaining agreement, if read literally, would require compensation for the time in question, since “[t]here is no question that the driver when [inspecting the vehicle) is on the employer’s business.” App. to Pet. for Cert. 4a. Nonetheless, because it found no breach of the duty of fair representation, the court was obliged to let the decision of the joint committee stand with respect to the contractual claim. The Court of Appeals agreed with this conclusion, and also noted that the literal terms of the collective-bargaining agreement appeared to cover the disputed time. 615 F. 2d, at 1198. As we stated in Vaca v. Sipes, 386 U. S. 171, 184 (1967), when an employee’s claim “is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced.” Only if the arbitration process has been tainted, e. g., by the union’s breach of its duty of fair representation, may the employee pursue his grievance in the courts. Hines v. Anchor Motor Freight, Inc., 424 U. S., at 567; Vaca v. Sipes, supra, at 186. As an alternative ground in support of affirmance, respondents assert that petitioners’ claims should be barred because petitioners failed to comply with 29 U. S. C. §216 (b), which provides: “No employee shall be a party plaintiff to any [FLSA enforcement ac tion] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.” Even if this requirement were to apply to petitioners’ suit, a nonclass action, it was satisfied when petitioners individually signed at least two sets of interrogatories. Cf. U. S. Bulk Carriers, Inc. v. Arguelles, 400 U. S. 351, 357 (1971) (seaman may assert wage claim in federal court under the Seaman’s Wage Act, 46 U. S. C. § 596, even though he had not previously pursued arbitral remedies provided by contractual grievance procedures); McKinney v. Missouri-Kansas-Texas R. Co., 357 U. S. 265, 268-270 (1958) (employee returning from military service" } ]

[ { "docid": "10327607", "title": "", "text": "ultimate gatekeeper to judicial access. See id. at 20 (“In 1994 the barrier to coming to court was lifted but the union still had the power to bind its mem bers. It still had the power to say these areas are going to go through the grievance procedure only and these other areas can come to court.”). The government relies heavily on O’Connor v. United States, 308 F.3d 1233 (Fed.Cir. 2002), which was decided by the same panel on the same day as Mudge II. O’Connor involved grievances filed by eleven unions on behalf of their unit members against a federal agency alleging the agency had violated the employees’ rights under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219. 308 F.3d at 1236-37. The parties entered into a “global settlement agreement” under which the agency agreed to pay more than $5 million to the employees. Id. at 1237. Roughly a year later, some of those employees sought to re-litigate the same claim in this Court. Id. The Court dismissed the complaint, following the rationale in Carter, but it also assumed arguendo that it possessed jurisdiction and granted partial summary judgment in favor of the government on the ground that the settlement constituted a valid accord and satisfaction of the employees’ claim. Id. at 1238-39. The Federal Circuit reversed the dismissal for lack of jurisdiction, relying on Mudge II to hold that this Court had jurisdiction, but it affirmed the Court’s grant of partial summary judgment for the government on the ground of accord and satisfaction. Id. at 1244. The government in the instant case asserts that O’Connor “leads to the inevitable conclusion that the grievance procedure shall be exclusive when specifically bargained for in a collective bargaining agreement.” Def.’s Mot. at 8. The National Treasury Employees Union as amicus curiae counters that the 1994 amendment to Section 7121(a)(1), as recognized by the Federal Circuit in Mudge II, limits to administrative procedures the scope of the exclusive remedies a union may negotiate. NTEU Br. at 13. NTEU argues that the amendment “thus sets the outer limits of the agreement" }, { "docid": "12938417", "title": "", "text": "settlement agreement constitutes a valid accord and satisfaction, and we therefore affirm the court’s decision granting partial summary judgment in the government’s favor on the issue. As a preliminary matter, appellants’ argument that any accord and satisfaction is binding only upon the union and not upon the individual employees lacks merit. Appellants do not contest that local 2433 is their exclusive bargaining unit representative. See O’Connor, 50 Fed.Cl. at 287. Under § 7114 of the CSRA, local 2433 therefore “represents and is entitled to act for” appellants. 5 U.S.C. § 7114(a)(1) (2000). Section 7121(b)(1)(C)(i) of the CSRA further provides that local 2433’ has the right “in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances.” Id. § 7121(b)(1)(C)(i). Appellants’ CBA also asserts this right, stating that “[t]he DLA Council or its local affiliates has the right to act in its behalf or on the behalf of any employee(s) to present and process grievances.” Pursuant to the grievance procedure set forth in the CBA, the union acted on behalf of appellants to settle their FLSA claims. Appellants are therefore bound. We are similarly unconvinced by appellants’ reliance on Brooklyn Savings. In Brooklyn Savings, the Supreme Court held that a private employee could not waive or release his FLSA rights to liquidated damages. See Brooklyn Sav., 324 U.S. at 704, 713, 65 S.Ct. 895. The Court therefore concluded that respondents, who had both signed agreements releasing their FLSA claims against their employer's, were not precluded from bringing suit to recover the remainder of the overtime wages and liquidated damages owed them under the statute. Id. at 716, 65 S.Ct. 895. In so holding, the Court relied heavily on what it saw as the purpose behind the FLSA: The [FLSA] was a recognition of the fact that due to the unequal bargaining power as between employer and employee, certain segments of the population required federal compulsory legislation to prevent private contracts on their part which endangered national health and efficiency and as a result the free movement of goods in" }, { "docid": "14175444", "title": "", "text": "“liberal federal policy favoring arbitration agreements.” Mitsubishi [Motors Corp. v. Soler Chrysler-Plymouth ], 473 U.S. [614], at 625, 105 S.Ct. [3346], at 3353 [87 L.Ed.2d 444 (1985)]. Therefore, those cases provide no basis for refusing to enforce Gilmer’s agreement to arbitrate his ADEA claim. 500 U.S. at 35, 111 S.Ct., at 1657. In a case similar to the present case, Austin v. Owens-Brockway Glass, supra, the plaintiff attempted to sue her former employer for alleged violations of the ADA. The employer argued that the complaint should be dismissed because the plaintiff failed to use the grievance-arbitration procedure set forth in the collective bargaining agreement between the employer and the company union. This CBA provided that disputes under the CBA were to be governed by a grievance procedure which provided for the compulsory submission of all disputed claims to a neutral third party arbitrator whose decision was to be final and binding upon the parties. 844 F.Supp. at 1106. The district court for the Western District of Virginia ruled that: The April 1, 1993-March 31, 1996 contract governs this dispute and it provides specifically for grievance procedures (see Articíes 31 and 38) to be utilized to resolve disputes under the ADA. Article 31 at page 68 of the Union Shop Contract states that “any disputes under this article ... shall be subject to the grievance procedure.” Because plaintiffs complaint was subject to mandatory arbitration, the Gil- . mer line of eases applies here. Accordingly, because plaintiff did not utilize the grievance procedures available in the April 1, 1993-March 31, 1996 Union Shop Contract, Summary Judgment will be granted in favor of defendant. Id. at 1106-07. Art Iron argues to this court that the arbitration clause in the CBA specifically covers disputes between employer and employee, including discrimination claims and, therefore, like the Austin court, this court should find that Block is barred from bringing his discrimination claim to federal court. Block strongly opposes Art Iron’s motion for summary judgment and takes the position that the arbitration clause in the CBA is not applicable to his discrimination claims. Block argues that the" }, { "docid": "10327608", "title": "", "text": "rationale in Carter, but it also assumed arguendo that it possessed jurisdiction and granted partial summary judgment in favor of the government on the ground that the settlement constituted a valid accord and satisfaction of the employees’ claim. Id. at 1238-39. The Federal Circuit reversed the dismissal for lack of jurisdiction, relying on Mudge II to hold that this Court had jurisdiction, but it affirmed the Court’s grant of partial summary judgment for the government on the ground of accord and satisfaction. Id. at 1244. The government in the instant case asserts that O’Connor “leads to the inevitable conclusion that the grievance procedure shall be exclusive when specifically bargained for in a collective bargaining agreement.” Def.’s Mot. at 8. The National Treasury Employees Union as amicus curiae counters that the 1994 amendment to Section 7121(a)(1), as recognized by the Federal Circuit in Mudge II, limits to administrative procedures the scope of the exclusive remedies a union may negotiate. NTEU Br. at 13. NTEU argues that the amendment “thus sets the outer limits of the agreement unions and agencies may reach, and defines the only forums— administrative — which the grievance procedure may supplant.” Id. NTEU distinguishes O’Connor on the grounds that Mr. Mudge never got a bite at the administrative-remedy apple, whereas that case involved a settlement of an administrative claim and is limited to the doctrine of accord and satisfaction. Id. at 16. Finally, amicus NTEU relies on precedents holding that private-sector unions lack the power prospectively to waive an individual’s statutory right to a judicial remedy. Id. at 17-18. The government’s contention that a union has power to negotiate away a federal employee’s access to a judicial forum is without merit. First, the government’s reliance on O’Connor is misplaced. The O’Connor court elaborated on the effect of the 1994 amendment to the CSRA, explaining that it allowed federal employees to seek judicial redress “outside the corners of their collective agreement”: With the 1994 amendments to the CSRA ... Congress expanded the scope of [a unionized federal] employee’s rights. By providing that the negotiated grievance procedures established in a" }, { "docid": "2085835", "title": "", "text": "Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636-40, 105 S.Ct. 3346, 3358-61, 87 L.Ed.2d 444 (1985); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 229-34, 107 S.Ct. 2332, 2339-42, 96 L.Ed.2d 185 (1987). In such a situation, the parties simply submit the resolution of their dispute “in an arbitral, rather than a judicial, forum.” Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354. And, as the Court noted, “[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Id. Thus, absent a finding of the sort underlying Alexander, i.e., that statutory and contractual rights are “distinctly separate” and that arbitration cannot adequately substitute for adjudication as a means of enforcing statutory rights, deferment is clearly appropriate. If a union has the acknowledged power to “bargain away” its employees’ “statutorily protected rights” under the NLRA, the Board can certainly decline to exercise its jurisdiction when the union takes the lesser step of simply agreeing to have its members’ rights vindicated in an arbitral, rather than Board, forum. Accordingly, Board deferment in this case is hardly problematic. III. The majority properly limits its discussion to the deferment question before us today and declines to consider whether the Board could subsequently grant deference to the decision reached by the grievance committee. Our present holding, however, will not hang as a loose strand in labor jurisprudence; rather, it will quickly be woven into the fabric of labor law pursuant to which the NLRB regulates the exercise of its jurisdiction. Thus, I believe it is important to recognize some of the inevitable implications of our decision upon Hammontree’s claim, and the claims of those who follow him. The rationale behind our holding today, as well as the prior precedent of this court, indicate quite clearly that the Board may accord considerable deference to the decision reached by the grievance committee in the event that Hammontree pursues his contract remedies and then brings his claim once again before the Board. As the majority opinion" }, { "docid": "22229674", "title": "", "text": "the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 628 (1985). It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer, 500 U. S., at 26-33. In Gilmer, the Court explained that “[although all statutory claims may not be appropriate for arbitration, ‘[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id., at 26 (quoting Mitsubishi Motors Corp., supra, at 628). And “[i]f Congress intended the substantive protection afforded by the ADEA to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” 500 U. S., at 29 (internal quotation marks and some brackets omitted). The Court determined that “nothing in the text of the ADEA or its legislative history explicitly precludes arbitration.” Id., at 26-27. The Court also concluded that arbitrating ADEA disputes would not undermine the statute’s “remedial and deterrent function.” Id., at 28 (internal quotation marks omitted). In the end, the employee’s “generalized attacks” on “the adequacy of arbitration procedures” were “insufficient to preclude arbitration of statutory claims,” id., at 30, because there was no evidence that “Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act,” id., at 35. The Gilmer Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative. This Court has required only that an agreement to arbitrate statutory antidiscrimination claims be “explicitly stated” in the collective-bargaining agreement. Wright, 525 U. S., at 80 (internal quotation marks omitted). The CBA under review here meets that obligation. Respondents incorrectly counter that an individual employee must personally “waive” a “[substantive] right” to proceed in court for a waiver to be “knowing and voluntary” under the ADEA. 29 U." }, { "docid": "14175443", "title": "", "text": "his discrimination claim directly to federal court, rather than being required to arbitrate his claim. The Court stated: There are several important distinctions between the Gardner-Denver line of cases and the case before us. First, those cases did not involve the issue of the enforceabil ity of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those eases understandably was not held to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. (Emphasis added). Finally, those cases were not decided under the FAA, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” Mitsubishi [Motors Corp. v. Soler Chrysler-Plymouth ], 473 U.S. [614], at 625, 105 S.Ct. [3346], at 3353 [87 L.Ed.2d 444 (1985)]. Therefore, those cases provide no basis for refusing to enforce Gilmer’s agreement to arbitrate his ADEA claim. 500 U.S. at 35, 111 S.Ct., at 1657. In a case similar to the present case, Austin v. Owens-Brockway Glass, supra, the plaintiff attempted to sue her former employer for alleged violations of the ADA. The employer argued that the complaint should be dismissed because the plaintiff failed to use the grievance-arbitration procedure set forth in the collective bargaining agreement between the employer and the company union. This CBA provided that disputes under the CBA were to be governed by a grievance procedure which provided for the compulsory submission of all disputed claims to a neutral third party arbitrator whose decision was to be final and binding upon the parties. 844 F.Supp. at 1106. The district court for the Western District of Virginia ruled that: The April 1, 1993-March 31, 1996" }, { "docid": "12938408", "title": "", "text": "7121(a)(1) provides simply that a CBA’s negotiated grievance procedures would be “the exclusive procedures for resolving grievances which fall within [a CBA’s coverage].” 5 U.S.C. § 7121(a)(1) (1988) (emphasis added). In Carter v. Gibbs, 909 F.2d 1452, 1454 (Fed.Cir.1990) (en banc), this court interpreted unamended § 7121(a)(1) to foreclose judicial remedies for employee grievances covered by a CBA. In the instant case, the Court of Federal Claims held that Congress’s addition of the word “administrative” to § 7121(a)(1) did not overrule Carter and thus does not allow federal employees to bring an action in court when their grievances are subject to the negotiated procedures contained in a CBA. See O’Connor, 50 Fed.Cl. at 293. Because the court found no reported legislative history to illuminate Congress’s intent in adding the term “administrative,” the court turned to the plain meaning of the word. Id. at 290. Although the court concluded that this plain meaning “must govern,” id., it declined to construe § 7121(a)(1) accordingly, id. at 291. As the court stated, it could not “agree that obeisance to the dictionary definition of the word ‘administrative’ to the exclusion of other considerations justifies departure from a legislative scheme grounded on the premise that collectively bargained grievance procedures are the preferred method of dispute resolution for unionized federal employees.” Id. Instead, the court undertook a broader approach to statutory interpretation, concluding that the appellants’ interpretation would be contrary to the CSRA’s overall purpose of limiting judicial remedies in favor of bargained — for grievance procedures such as arbitration. See Id. at 292-93 (stating that the appellants’ interpretation “would turn the established statutory scheme ... on its head”). The court went on, assuming arguendo that it possessed jurisdiction, to determine that the settlement agreement constituted an accord and satisfaction of the appellants’ FLSA claims. Id. at 239. The court found that appellants had not raised a genuine issue of material fact that any of the elements of common law accord and satisfaction had not been satisfied. Id. at 294. Appellants argued that local 2433 was not a competent party to represent them in the agreement," }, { "docid": "12938416", "title": "", "text": "even if the settlement agreement constitutes a valid accord and satisfaction, it is binding only upon the union and not upon the individual employees whom the union represents. The government responds that the settlement agreement satisfied the four elements required for a valid accord and sat isfaction and that the Court of Claims’ grant of partial summary judgment was therefore correct. The government argues that appellants’ reliance on Brooklyn Savings and Lynn’s Food Stores is misplaced because those were private sector cases that consequently did not address the compromise of a federal employee’s FLSA rights under the CSRA. According to the government, the CSRA authorized the local bargaining unit representatives to release their members’ FLSA claims by first defining the term “grievance” sufficiently broadly to encompass those claims and then providing for the settlement of such grievances by the locals. The government therefore asserts that the agreement not to arbitrate contained in the settlement agreement between local 2433 and the agency precludes appellants from pursuing their FLSA claims in court. We conclude that the parties’ settlement agreement constitutes a valid accord and satisfaction, and we therefore affirm the court’s decision granting partial summary judgment in the government’s favor on the issue. As a preliminary matter, appellants’ argument that any accord and satisfaction is binding only upon the union and not upon the individual employees lacks merit. Appellants do not contest that local 2433 is their exclusive bargaining unit representative. See O’Connor, 50 Fed.Cl. at 287. Under § 7114 of the CSRA, local 2433 therefore “represents and is entitled to act for” appellants. 5 U.S.C. § 7114(a)(1) (2000). Section 7121(b)(1)(C)(i) of the CSRA further provides that local 2433’ has the right “in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances.” Id. § 7121(b)(1)(C)(i). Appellants’ CBA also asserts this right, stating that “[t]he DLA Council or its local affiliates has the right to act in its behalf or on the behalf of any employee(s) to present and process grievances.” Pursuant to the grievance procedure set forth in the" }, { "docid": "21553752", "title": "", "text": "FLSA precedent completely precluding private waivers of ADEA substantive rights). Our ultimate duty therefore under Shearson and Coventry is to analyze the text, history and the purposes of the ADEA. As the following discussion illustrates, the application of the FLSA in Barrentine is not particularly helpful to this inquiry. The rationales underlying Barrentine ave either distinguishable from this case or are brought into question by the Court in Shearson. In McDonald, the Court laid out four justifications for its decision in Barrentine and Alexander: (1) “[a]n arbitrator may not ... have the expertise required to resolve the complex legal questions that arise in § 1983 actions”; (2) “ar-bitral factfinding is generally not equivalent to judicial factfinding [because] ... ‘the record of the arbitration proceedings is not as complete ... and rights and procedures common to civil trials .. are often severely limited or unavailable’ ” (3) the arbitrator’s job is to enforce the agreement and, even if the public law is in conflict with the bargain, the arbitrator nonetheless must enforce the contract; and (4) in the case of abitration pursuant to a collective bargaining agreement, “[t]he union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee’s grievance less vigorously, or make different strategic choices, than would the employee.” 466 U.S. at 290-91, 104 S.Ct. at 1803 (citations omitted). The majority concedes that the first two justifications are no longer viable. See Maj.Op. at 229; they were expressly rejected by the Court in Shearson, as examples of “a general suspicion of the desirability of arbitration and the competence of arbi-tral tribunals” and are “difficult to reconcile ... with [the] Court’s subsequent decisions involving the Arbitration Act.” Shearson, 107 S.Ct. at 2340. The Court found in Shearson and Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), that “arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust [and securities] claims, notwithstanding the absence of judicial instruction and supervision.” Id.; Mitsubishi, 473 U.S. at 633-34," }, { "docid": "15265262", "title": "", "text": "making this argument, Defendant relies on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), where the Supreme Court held that a claim under the Age Discrimination in Employment Act (ADEA) could be subjected to compulsory arbitration pursuant to an arbitration agreement. In arriving at this holding, however, the Court noted that “not all statutory claims may be appropriate for arbitration,” and, where Congress “has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue,” a party may not be compelled to arbitrate his claim before seeking judicial remedies. Gilmer, 500 U.S. at 26-27, 111 S.Ct. at 1652, (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)). The Court noted that Congressional intent may be determined in the text of the statute, in its legislative history, or in an inherent conflict between arbitration and the statute’s underlying purposes. Id. While the text of the statute in § 12112 does encourage the use of alternative means of dispute resolution where appropriate, including arbitration, the legislative history of the Act is unequivocal in expressing Congress’s intent to preclude a waiver of judicial remedies: [T]he use of alternative dispute resolution mechanisms is intended to supplement, not supplant, the remedies provided by this Act. Thus, for example ... any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of this Act. H.R.Rep. No. 485(111), 101st Cong., 2nd Sess. (1990) reprinted in 1990 U.S.C.C.A.N. pp. 267, 445, 499-500. As Congress has clearly expressed its intent that the statutory rights and judicial remedies of the ADA cannot be waived, under Gilmer, the grievance and arbitration provisions of the CBA do not preclude Plaintiff from pursuing his judicial remedies. Accordingly, Defendant’s argument that the Court lacks subject matter jurisdiction is without merit. The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because" }, { "docid": "10327610", "title": "", "text": "CBA are to be “the exclusive administrative procedures” as opposed to the “exclusive procedures for resolving grievances which fall within its coverage,” 5 U.S.C. § 7121(a)(1) (2000), these amendments allowed federal employees to seek redress of their grievances in court and therefore outside the comers of their collective agreement. Nothing in the 1994 amendments altered the breadth of federal employees’ right to administrative grievance relief!;] however, such administrative rights therefore remain consolidated within the terms of then- CBA. 308 F.3d at 1244 (second emphasis added) (internal citation omitted). In settling its unit members’ claims, the union in O’Connor acted pursuant to the grievance procedure contained in the pertinent bargaining agreement. This procedure- constituted the exclusive administrative remedy, but the Federal Circuit did not hold that such exclusivity foreclosed a judicial remedy. Instead, as a jurisdictional matter, the Court of Appeals explicitly stated that the statutory amendment entitled federal employees to seek redress “outside the corners of their collective agreement.” Id. The Court’s conclusion that the employees in O’Connor were not entitled to a judicial remedy on the merits did not mean they were not entitled to seek one. Second, a union’s power under the CSRA to represent federal employees is different from the power of a union in the private sector to represent employees in a bargaining unit. Nonetheless, precedents from private-sector union bargaining tend to confirm the foregoing interpretation of limits on a union’s power under the CSRA. In Wright v. Universal Maritime Service Corp., 525 U.S. 70, 75-77, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998), the Supreme Court observed, but did not resolve, the tension between two lines of its precedents. Under one branch, represented by Alexander v. Gardner-Denver Co., 415 U.S. 36, 51-52, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), “an employee’s rights under Title VII- [of the Civil Rights Act of 1964] are not susceptible of prospective waiver.” Under the second, represented by Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33-35, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the right to a judicial forum for a statutory claim could be waived by an individual employee." }, { "docid": "15265261", "title": "", "text": "he was hired, the Plaintiff disclosed to Katie Barta, the Human Resources Director for the facility, that he was blind in one eye. After a training period, Plaintiff operated a 245 rotary die cutter, a machine with sharp rotating blades. After experiencing some blurred vision and dizziness which interfered with the quality of his work production, Plaintiff was sent to a physician and was ultimately diagnosed as having multiple sclerosis (“MS”). Plaintiffs physician concluded that Plaintiff could not safely operate or work around machinery. The Defendant contends that it then engaged in a process of considering reasonable accommodations, but was unsuccessful in identifying any reasonable accommodation that would enable the Plaintiff to perform the essential functions of an available position for which he was otherwise qualified. Accordingly, the Plaintiff was terminated. After seeking appropriate administrative remedies, Plaintiff filed the present complaint. Defendant first argues that this Court lacks subject matter jurisdiction over Plaintiffs claim because Plaintiff failed to submit the matter of his termination to the mandatory grievance and arbitration procedures under the CBA. In making this argument, Defendant relies on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), where the Supreme Court held that a claim under the Age Discrimination in Employment Act (ADEA) could be subjected to compulsory arbitration pursuant to an arbitration agreement. In arriving at this holding, however, the Court noted that “not all statutory claims may be appropriate for arbitration,” and, where Congress “has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue,” a party may not be compelled to arbitrate his claim before seeking judicial remedies. Gilmer, 500 U.S. at 26-27, 111 S.Ct. at 1652, (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)). The Court noted that Congressional intent may be determined in the text of the statute, in its legislative history, or in an inherent conflict between arbitration and the statute’s underlying purposes. Id. While the text of the statute in § 12112 does encourage the use" }, { "docid": "2701446", "title": "", "text": "court under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., arguing that the arbitration agreement which he had signed required the arbitration only of contractual disputes. The Supreme Court concluded that the agreement also required the arbitration of statutory claims and therefore held that the agreement barred the plaintiffs ADEA action. The Court explained that “ ‘[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id. at —, 111 S.Ct. at 1652 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)). Applying the principle articulated in Mitsubishi and Gilmer, courts have held that individual employees who agree to arbitrate disputes with their employers must arbitrate Title VII claims. See Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 700 (11th Cir.1992); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir.1992); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 312 (6th Cir.1991). In light of these holdings, the defendants in this case now argue that the plaintiff should be required to arbitrate her Title VII claims because she agreed — by virtue of the collective-bargaining agreement under which she was employed — to submit such claims to grievance procedures. The plaintiff relies on a different line of authority to support her contention that the collective-bargaining agreement does not require the arbitration of her Title VII claims. This line of authority begins with the decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), where the Court permitted an employee who had exhausted grievance procedures available under a collective-bargaining agreement to bring a Title VII claim in federal court. In that case, the Court held that collective-bargaining agreements do not require employees to submit statutory claims to grievance procedures. The purpose of the grievance procedures, the Court found, was simply to resolve disputes arising out of the collective-bargaining agreement itself." }, { "docid": "12938407", "title": "", "text": "Finally, the settlement agreement stated that, with the exception of the provisions governing the disputed Appendix C positions, the union would not arbitrate the matters asserted in the FLSA grievances for the time periods covered by the grievances nor would it pursue individual employee claims to arbitration other than as elsewhere provided in the settlement agreement. Id. Almost a year later, appellants filed a complaint in the Court of Federal Claims alleging that the agency had violated § 207 of the FLSA. Id. The court dismissed appellant’s complaint on the ground that § 7121(a)(1) of the CSRA deprived the court of jurisdiction. Id. at 293. As stated above, § 7121(a)(1) provides that the negotiated grievance procedures contained in a CBA shall be, with certain exceptions, “the exclusive administrative procedures for resolving grievances that fall within [the CBA’s] coverage.” 5 U.S.C. § 7121(a)(1) (2000) (emphasis added). The word “administrative” was added to the statute by Congress in 1994, and it forms the heart of the jurisdictional debate in this case. Prior to the 1994 amendment, § 7121(a)(1) provides simply that a CBA’s negotiated grievance procedures would be “the exclusive procedures for resolving grievances which fall within [a CBA’s coverage].” 5 U.S.C. § 7121(a)(1) (1988) (emphasis added). In Carter v. Gibbs, 909 F.2d 1452, 1454 (Fed.Cir.1990) (en banc), this court interpreted unamended § 7121(a)(1) to foreclose judicial remedies for employee grievances covered by a CBA. In the instant case, the Court of Federal Claims held that Congress’s addition of the word “administrative” to § 7121(a)(1) did not overrule Carter and thus does not allow federal employees to bring an action in court when their grievances are subject to the negotiated procedures contained in a CBA. See O’Connor, 50 Fed.Cl. at 293. Because the court found no reported legislative history to illuminate Congress’s intent in adding the term “administrative,” the court turned to the plain meaning of the word. Id. at 290. Although the court concluded that this plain meaning “must govern,” id., it declined to construe § 7121(a)(1) accordingly, id. at 291. As the court stated, it could not “agree that obeisance" }, { "docid": "2701445", "title": "", "text": "retaliated against the plaintiff in response to her efforts to obtain relief from the alleged harassment. The defendants argue that these claims (“the Title VII claims”) should be barred because the plaintiff failed to exhaust grievance procedures available under a collective-bargaining agreement. In response, the plaintiff contends that the collective-bargaining agreement only required employees to arbitrate contractual disputes, not statutory claims. The court now concludes that the plaintiff is not barred from bringing her Title VII claims because the collective-bargaining agreement does not require employees to submit individual statutory claims to arbitration. The defendants’ challenge to the plaintiffs Title VII claims rests on the holding of the Supreme Court in Gilmer v. Interstate/Johnson Lane Corp., — U.S. —, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). The plaintiff in that case had agreed, in his application to register as a securities representative, “to arbitrate any dispute, claim, or controversy” arising between him and his employer. Id. at —, 111 S.Ct. at 1650. After he was dismissed, the plaintiff brought a claim against his employer in federal court under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., arguing that the arbitration agreement which he had signed required the arbitration only of contractual disputes. The Supreme Court concluded that the agreement also required the arbitration of statutory claims and therefore held that the agreement barred the plaintiffs ADEA action. The Court explained that “ ‘[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id. at —, 111 S.Ct. at 1652 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)). Applying the principle articulated in Mitsubishi and Gilmer, courts have held that individual employees who agree to arbitrate disputes with their employers must arbitrate Title VII claims. See Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 700 (11th Cir.1992); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 935 (9th Cir.1992);" }, { "docid": "2085834", "title": "", "text": "was properly required by the Board to arbitrate his grievance pursuant to the terms of the collective bargaining contract. The parties to the collective agreement chose to supplant statutory rights with analogous rights created under the contract, and they provided that disputes concerning those rights would be resolved pursuant to an agreed-upon grievance procedure. Giving legal effect to that agreement respects the private ordering of rights and responsibilities established through collective bargaining, and fosters the strong labor policy of promoting industrial peace through arbitration. Consequently, Board deferment in the case is clearly permissible. Furthermore, even if it might be argued that there was no “clear and unmistakable” waiver of statutory rights in this case, see Metropolitan Edison, 460 U.S. at 708, 103 S.Ct. at 1477, the Board could still require deferment. This is so because the Supreme Court has said in other contexts that, even when parties do not forgo substantive rights afforded by statute, they still may be required to adhere to an agreement to arbitrate a statutory claim. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 636-40, 105 S.Ct. 3346, 3358-61, 87 L.Ed.2d 444 (1985); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 229-34, 107 S.Ct. 2332, 2339-42, 96 L.Ed.2d 185 (1987). In such a situation, the parties simply submit the resolution of their dispute “in an arbitral, rather than a judicial, forum.” Mitsubishi, 473 U.S. at 628, 105 S.Ct. at 3354. And, as the Court noted, “[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” Id. Thus, absent a finding of the sort underlying Alexander, i.e., that statutory and contractual rights are “distinctly separate” and that arbitration cannot adequately substitute for adjudication as a means of enforcing statutory rights, deferment is clearly appropriate. If a union has the acknowledged power to “bargain away” its employees’ “statutorily protected rights” under the NLRA, the Board can certainly decline to exercise its jurisdiction when the union takes the lesser step of simply agreeing" }, { "docid": "10327616", "title": "", "text": "MSPB, and OPM, Mr. Mudge never succeeded in invoking any administrative forum for redress. See supra, at 529. When Mr. Mudge finally filed a complaint in this Court, he acted pursuant to his individual, statutory right, which exists independently of the grievance procedure contained in the collective bargaining agreement. That right to seek judicial relief belongs to him, not his union. Whereas the union’s choices bound Mr. Mudge as to administrative remedies, the union lacks power to preclude him from exercising his personal, individual right to seek a judicial remedy. B. Divestiture of Individual Rights Union power, even if lacking generally to preclude an individual’s statutory right to a judicial forum, arguably might, in a particular case, constrain or restrict the individual member’s rights. As previously noted, Mudge II did not decide the issue of whether the terms of the collective bargaining agreement negotiated by the union operate to waive his right to seek a judicial remedy. 308 F.3d at 1221, 1232. The government contends that Article 5, Section 2 of the pertinent collective bargaining agreement, which provides that the grievance procedure “shall be the exclusive procedure available to the parties and the employees in the unit for resolving grievances,” NTEU Br., Ex. 1 at 7 (Collective Bargaining Agreement, Feb. 1992), should be read to deprive this Court of jurisdiction over Mr. Mudge’s claims by excluding resort to any other mode of redress. E.g., Def.’s Reply at 10-11. As the Federal Circuit noted, the grievance procedure may or may not culminate in arbitration, but, if arbitration occurs under the bargaining agreement, it is to be “final and binding.” Mudge II, 308 F.3d at 1233 (citing 5 U.S.C. § 7121(b)(l)(C)(iii)). In opposition, NTEU relies on the standard explicated in Wright, 525 U.S. at 80, 119 S.Ct. 391, re sponding that the bargaining agreement’s grievance provisions do not constitute a “clear and unmistakable” waiver of Mr. Mudge’s right to a judicial forum. E.g., NTEU Br. at 19-23. The government’s attempt to invoke a waiver of Mr. Mudge’s rights through the collective bargaining agreement is bereft of support. First, the collective bargaining agreement" }, { "docid": "10327614", "title": "", "text": "the group. Third, in response to NTEU’s rebanee on the Gardner-Denver and Gilmer line of authorities, the government argues that private-sector employment case law is inap-posite to the federal-sector context. The government reads the Federal Circuit as having “flatly rejected,” Def.’s Mot. at 10, the appbcation of private-sector law to the federal-sector context when it recognized in O’Connor that “private-sector law is not controlling in the context of federal labor controversies.” Def.’s Mot. at 10 n. 1 (quoting O’Connor, 308 F.3d at 1242-43) (citing Karahalios v. National Fed’n of Fed. Employees, Local 1263, 489 U.S. 527, 535, 109 S.Ct. 1282, 103 L.Ed.2d 539 (1989)); see also Carter v. Gibbs, 909 F.2d 1452, 1457 (Fed.Cir.1990); O’Connell v. Hove, 22 F.3d 463, 471 (2d Cir.1994). The government is manifestly correct as to the rationale underlying these cases. “Unlike the circumstances in the private sector that prompted Congress to pass the FLSA, in the Federal sector, the CSRA process provides sufficient indicia of trustworthiness that the minimum substantive guarantees found in the FLSA are appropriately safeguarded tvhen vindicated through the statutorily-crafted, agreed wpon, grievance procedure.” Def.’s Reply at 8 (emphasis added). The government errs, however, in failing to recognize what happens when a federal employee’s grievances are not vindicated through the negotiated grievance procedure contained in the employee’s collective bargaining agreement. When a union declines, for example, to pursue a grievance of a unit member or to take that grievance to arbitration, such an employee has, by -statute, no administrative recourse. In effect, in that circumstance, the federal-sector employee is placed on the same footing as a private employee. That private-sector case law is not controlling in the federal-sector, context does not diminish its use as persuasive, confirmatory authority where the nature of a federal employee’s situation parallels that of a private employee. In this case, Mr. Mudge’s union chose not to pursue his pay-retention claim, electing instead to proceed only with respect to his pay-differential claim, which the union subsequently declined to take to arbitration. See supra, at 529. Having been denied access to relief by his union and by FAA, GAO," }, { "docid": "10327609", "title": "", "text": "unions and agencies may reach, and defines the only forums— administrative — which the grievance procedure may supplant.” Id. NTEU distinguishes O’Connor on the grounds that Mr. Mudge never got a bite at the administrative-remedy apple, whereas that case involved a settlement of an administrative claim and is limited to the doctrine of accord and satisfaction. Id. at 16. Finally, amicus NTEU relies on precedents holding that private-sector unions lack the power prospectively to waive an individual’s statutory right to a judicial remedy. Id. at 17-18. The government’s contention that a union has power to negotiate away a federal employee’s access to a judicial forum is without merit. First, the government’s reliance on O’Connor is misplaced. The O’Connor court elaborated on the effect of the 1994 amendment to the CSRA, explaining that it allowed federal employees to seek judicial redress “outside the corners of their collective agreement”: With the 1994 amendments to the CSRA ... Congress expanded the scope of [a unionized federal] employee’s rights. By providing that the negotiated grievance procedures established in a CBA are to be “the exclusive administrative procedures” as opposed to the “exclusive procedures for resolving grievances which fall within its coverage,” 5 U.S.C. § 7121(a)(1) (2000), these amendments allowed federal employees to seek redress of their grievances in court and therefore outside the comers of their collective agreement. Nothing in the 1994 amendments altered the breadth of federal employees’ right to administrative grievance relief!;] however, such administrative rights therefore remain consolidated within the terms of then- CBA. 308 F.3d at 1244 (second emphasis added) (internal citation omitted). In settling its unit members’ claims, the union in O’Connor acted pursuant to the grievance procedure contained in the pertinent bargaining agreement. This procedure- constituted the exclusive administrative remedy, but the Federal Circuit did not hold that such exclusivity foreclosed a judicial remedy. Instead, as a jurisdictional matter, the Court of Appeals explicitly stated that the statutory amendment entitled federal employees to seek redress “outside the corners of their collective agreement.” Id. The Court’s conclusion that the employees in O’Connor were not entitled to a judicial remedy" } ]

[ { "docid": "14239422", "title": "", "text": "of the intention to make. The defendant denied having knowledge of the ownership of the firearm, its source, or its presence in the automobile. In this setting, the defendant’s invocation of his privilege against self-inerimination is not well taken, since his offense derived not from his own failure to comply with the making provisions but rather from his possession of the firearm illegally made by others. We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information. We pretermit discussion or decision of the question whether one who makes a firearm and is charged with possession of it could successfully assert that by filing the declaration of intention to make he is compelled to furnish incriminating evidence to himself. That issue is not before us. The conviction under Count II is reversed with directions to the district court to dismiss that count. In all other respects the judgment is affirmed. . Section 5851 provides in pertinent part: “It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812(b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.” . We are aware that there are situations where the stopping of a person for investigation is not sufficient in itself to constitute an arrest in the legal sense. Gullett v. United States, 387 F.2d 307 (8th Cir. 1967); Rodgers v. United States, 362 F.2d 358 (8th Cir.), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed. 2d 454 (1966)." } ]

[ { "docid": "7768120", "title": "", "text": "under the National Firearms Act. Necessarily, a question of incrimination can arise only if a wholly different criminal act is performed at some point in the future. To accept appellant’s argument would be tantamount to saying that a pharmacist should not be required to acknowledge receipt of certain drugs since he may secretly intend to distribute them without a prescription, and would therefore be supplying evidence of receipt which would incriminate him. We affirm appellant's conviction on the counts four and eleven discussed above. We need not pass on the remaining three counts. The concurrent sen tences imposed by the trial court are well within that which could be imposed under a single count. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). In addition, there is no suggestion that appellant received a greater sentence due to the presence of multiple counts. Saville v. United States, 400 F.2d 397 (1st Cir. 1968). . The five counts included: (1) two counts that the defendant in violation of section 5851 knowingly possessed a machine gun which had been transferred in violation of section 5814; (2) two counts that the defendant in violation of section 5851 knowingly possessed a machine gun oh which the tax imposed by section 5811 had not been paid; (3) one count that the defendant had transferred a machine gun in violation of section 5814. Section 5851 provides that it shall be unlawful to receive or possess a firearm as defined in the Act which has been transferred in violation of the Act. This would include transfers made without use of the order form required by section 5814 (see n. 2 infra) and without payment of the tax imposed by section 5811. Section 5811 requires that the transferor pay a tax on the firearm to be transferred by affixing the proper tax stamps on the order form of section 5814. If the trans-feror does not pay the tax, the transferee is jointly and severally liable for its payment. . The relevant parts of section 5814 are as follows: “(a) General requirements. It shall be" }, { "docid": "20331634", "title": "", "text": "prime suspect on possible charges involving other weapons. It may be conceded that a person like appellant does not ordinarily make silencers for his own amusement, but we do not think that the incrimination issue is so easily decided. In Varitimos v. United States, 404 F.2d 1030, 1034 (1st Cir. 1968), cert. denied, 395 U.S. 976, 89 S.Ct. 2126, 23 L.Ed.2d 765 (1969), the claim was made that: [E]ven though a firearm is acquired lawfully, its acquisition focuses suspicion on the transferee because of the legislative purpose of the Act. Thus, should a transferee subsequently engage in illegal activity involving a firearm, the order form would provide a link in the chain leading to conviction. The court rejected the argument: [T]he protection of the Fifth Amendment privilege is inapplicable to prospective acts involving only a speculative and insubstantial hazard of incrimination. * * * In Marehetti the fact that 49 states prohibited the very activity disclosed by payment of the tax constituted a real hazard of incrimination. But here there is no prohibition, either state or federal, against possession of a firearm lawfully acquired under the National Firearms Act. Necessarily, a question of incrimination can arise only if a wholly different criminal act is performed at some point in the future. To accept appellant’s argument would be tantamount to saying that a pharmacist should not be required to acknowledge receipt of certain drugs since he may secretly intend to distribute them without a prescription, and would therefore be supplying evidence of receipt which would incriminate him. [Footnote omitted.] It is true that a registrant under section 5821 may subsequently transfer a silencer without obtaining the order form required by section 5814, thus violating that section, or that one of his customers may use the silencer in committing a crime. But we agree with the First Circuit that the possibility that appellant or one of his customers may decide to commit a different criminal act in the future is not enough to support the fifth amendment claim. Moreover, as the above quotation makes clear, the analogy to Marchetti is not compelling." }, { "docid": "16547871", "title": "", "text": "seq. The bombs were allegedly made without payment of the tax required by 26 U.S.C. § 5821 and § '5822(b), and without the filing of a written application to make and register the bombs with the Secretary of the Treasury as required by 26 U.S.C. § 5822(a). Counsel argues that prosecution of the defendant under § 5861(c) for possession of these explosive devices, violates his privilege against self-incrimination. In support of this contention counsel cites Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Congress was well aware of the impact of the Haynes decision on the effectiveness of the firearm registration provisions in The National Firearms Act. To remedy the vice of that statute, Congress amended the law with the purpose of eliminating offending provisions. Gun Control Act of 1968, P.L. 90-618, Title II, § 201, 82 Stat. 1227, 26 U.S.C. A. § 5801 et seq. (Supp.1970). The question posed here is whether Congress was successful. Two District Courts have recently considered the constitutionality of 26 U. S.C.A. § 5861 as applied to one who possesses firearms which had not been registered to him — an offense under § 5861(d); to one who made firearms without having complied with the requirements of § 5822 — an offense under § 5861(f); and for transferring a firearm in violation of § 5812 — an offense under § 5861(e). See, United States v. Schultzler, 309 F.Supp. 681 (S.D.Ohio, Oct. 9, 1969); United States v. Schofer, 310 F.Supp. 1292 (E.D.N.Y. Dec. 15, 1969) (Dooling, J.). The Schultzler decision upheld the constitutionality of subdivisions (d) and (f) of § 5861 and ruled that they do not compel the defendant to incriminate himself in violation of the Fifth Amendment. The Schofer case involved one count under subdivision (d) and one count under subdivision (e) of § 5861. The" }, { "docid": "14641824", "title": "", "text": "L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). In Haynes, the Supreme Court held that the assertion of the privilege against self-incrimination was a complete defense to a prosecution under the provisions of the National Firearms Act prior to its Amendment in 1968 either for the failure to register a firearm under former § 5841 of Title 26 or for possession of an unregistered firearm under former § 5851 of Title 26. The statutory scheme then in force provided that not every possessor of a firearm had to register. One who made the firearm in compliance with the statute, or who acquired it by transfer in compliance with the statute did not have to register. 26 U.S.C. § 5841. If the statutory requirements respecting making or transfer were not met, then one who possessed a firearm had to fill out a form. 26 U.S.C. § 5841. The Act’s requirements on registration and taxation only applied to certain classes of firearms which “intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.” Haynes v. United States, 390 U.S. at 87, 88 S.Ct. at 725. The tax on the making and transfer of the firearms was supplemented by comprehensive provisions requiring that any possessor fully identify himself as the maker or the transferee of the firearm. A person had to file a notification to make the firearm and prepay the tax before making the firearm, as well as provide the Treasury with his fingerprints and photograph. 26 U.S.C. § 5821(e); Treas.Reg. § 179.78. A transferor could lawfully transfer the firearm only if he first obtained a written order form from the transferee. 26 U.S.C. § 5814(a). The application had to be approved by the Secretary and supported by a certificate of the local chief of police and accompanied by the transferee’s fingerprints and photograph. Treas.Reg. §§ 179.98, 179.99. Under 26 U.S.C. §§ 5841, every possessor of such a firearm had" }, { "docid": "2593793", "title": "", "text": "MERRILL, Circuit Judge. Appellant, in the District Court for the Western District of Washington, was convicted of receiving and possessing a firearm in violation of 26 U.S.C. § 5851 which had been transferred in violation of 26 U.S.C. § 5814. The firearm in question was a Steyr machine gun, possession of which is made a crime under Washington State law. On several occasions before and during trial appellant sought to secure dismissal of the charges against him upon the ground that the provisions of § 5814 required him to incriminate himself and that, consequently, conviction was barred by the Fifth Amendment. All such motions were denied. In our judgment, the charges must be dismissed on authority of Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Benner v. United States, 417 F.2d 421 (9th Cir. 1969). Haynes did not involve § 5814. It struck down a conviction -under § 5851 for possession of a firearm which had not been registered as required by § 5841. Since such registration would have compelled Haynes to provide self-incriminating information, it was held that the enforcement of § 5851 against the petitioner, given his timely assertion of the privilege, was not constitutionally permissible. 390 U.S. at 100, 88 S.Ct. 722. The Government seeks to distinguish the present case upon the ground that § 5814 does not require the transferee of a firearm to incriminate himself since the section’s requirements all antedate transfer and thus would occur prior to the commission of any state crime. All the would-be transferee need do to avoid incriminating himself, says the Government, is refrain from committing the crime. A similar argument was considered and rejected in Marchetti v. United States, supra. Discussing an earlier case. Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955), the Court stated: “The Court held in Lems that the registration and occupational tax requirements do not infringe the constitutional privilege because they do not compel self-incrimination, but merely impose" }, { "docid": "23021998", "title": "", "text": "initials, and the day, month and year, in such manner as to render it unfit for reuse. The cancellation shall not so deface the stamp as to prevent its denomination and genuineness from being readily determined. . 26 U.S.C.A. § 5841 provides: Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if the provisions which applied thereto were complied with. . See Haynes v. United States, 1968, 390 U.S. 85, 90-95, 88 S.Ct. 722, 19 L.Ed.2d 923, 928-931. . For pr e-Haynes decisions see Sipes v. United States, 8 Cir. 1963, 321 F.2d 174, cert. denied, 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150; Mares v. United States, 10 Cir. 1963, 319 F.2d 71. . See Burton v. United States, 5 Cir. 1969, 414 F.2d 261; Lewis v. United States, 10 Cir. 1969, 408 F.2d 1310; Reed v. United States, 8 Cir. 1968, 401 F.2d 756, 761-763, cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48; DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 351-352; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 762-765; United States v. Benner, D.Or.1968, 289 F.Supp. 860; United States v. Casson, D.Del.1968, 288 F.Supp. 86; United States v. Taylor, E.D.Wis.1968, 286 F.Supp. 683. But see United States v. Stevens, D.Minn.1968, 286 F.Supp. 532. . Burton v. United States, 5 Cir. 1969, 414 F.2d 261, 262-263; United States v. Benner, D.Or.1968, 289 F.Supp. 860, 861; United States v. Taylor, E.D.Wis. 1968, 286 F.Supp. 683, 684; see Lewis v. United States, 10 Cir. 1969, 408 F.2d" }, { "docid": "22154859", "title": "", "text": "DYER, Circuit Judge: In Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, the Supreme Court held, inter alia, that the privilege against self-incrimination is a complete defense to a prosecution under 26 U.S.C.A. § 4744(a), the Marihuana Tax Act provision which requires payment of the tax upon acquisition of marihuana. This appeal presents the question whether that ruling shall have retrospective application. We conclude that it is to be so applied; and accordingly, we reverse the District Court’s denial of Robert Harrington’s motion under 28 U.S.C.A. § 2255 to vacate his judgment of conviction and sentence. Harrington was indicted for acquiring approximately one kilogram of marihuana without having paid the transfer tax, in violation of 26 U.S.C.A. § 4744(a) (1); and for ■ transferring the same quantity of marihuana without the proper written order, in violation of 26 U.S. C.A. § 4742(a). He pled guilty under the first count, the “tax count”, whereupon the court dismissed the transfer count on motion of the Government. Harrington was sentenced under the tax count on April 2, 1969. He took no direct appeal, and thus the judgment became final prior to May 19, 1969, when the Supreme Court decided Leary. I. In United States v. United States Coin and Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434, a forfeiture had been ordered against the petitioner for failing to register as a gambler and to pay the related gambling taxes. Previously in Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, and Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the Supreme Court had held that the imposition of these registration and taxation burdens on gamblers violated their privilege against self-incrimination. Concluding in United States Coin and Currency, supra, that such a forfeiture was a criminal sanction analogous to a conviction, the Court determined that Marchetti and Grosso would retrospectively apply to forfeitures instituted before those decisions. The Court said: Unlike some of our earlier retroactivity decisions, we are not here concerned with the" }, { "docid": "8095557", "title": "", "text": "rectified after the weapon is made, there is no action required or, indeed, permitted of any possessor of a covered weapon made in violation of § 5821 which would prevent such possession from violating § 5851. Thus, unlike the offenses under §§ 5851 and 5841 considered in Haynes, the elements of the offenses under §§ 5851 and 5821 are not identical. See Taylor v. United States, 333 F.2d 721 (10th Cir. 1964) ; Sipes v. United States, 321 F.2d 174 (8th Cir. 1963), cert. denied 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150 (1963). The distinction drawn by the court in Haynes has recently been followed in cases rejecting claims identical to those here made. DePugh v. United States, 401 F.2d 346 (8 Cir. 1968) ; United States v. Taylor, 286 F.Supp. 683 (1968). Thus, the issue of whether the offense under § 5851 of possession of a firearm made in violation of § 5821 is properly distinguishable from the offense under § 5821 of failure to comply with the section’s provisions must be resolved against the appellant. It follows that appellant cannot claim that his timely assertion of the privilege against self-incrimination in the court below provided a full defense to the prosecution under § 5851. Even if it were assumed that appellant is correct in contending that the privilege against self-incrimination is available under § 5821, he would still have to bring himself within the purview of that section in order to invoke it. This he has failed to do. He stands charged and convicted under the separate offense set out in § 5851. Appellant’s lack of standing to assert the privilege against self-incrimination he alleges to be available as a defense under § 5821 is not the. only insurmountable problem in the argument he here advances. He recognizes that in Mares v. United States, 319 F.2d 71 (10th Cir. 1963), a case involving an offense identical to the one with which he was charged, it was held that the privilege against self-incrimination was not available under § 5821. He contends, however, that the Haynes doctrine compels" }, { "docid": "23021975", "title": "", "text": "89 S.Ct. 1637, 23 L.Ed.2d 48; DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 351-352; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 762-765; United States v. Benner, D. Or.1968, 289 F.Supp. 860; United States v. Casson, D.Del.1968, 288 F.Supp. 86; United States v. Taylor, E.D.Wis. 1968, 286 F.Supp. 683; United States v. Stevens, D.Minn.1968, 286 F.Supp. 532; see also Moodyes v. United States, 8 Cir. 1968, 400 F.2d 360, 361 n. 2; United States v. Harvey, 7 Cir. 1968, 397 F.2d 526, 527 n. 2. The courts have generally held that the second provision of § 5851 does not present a Fifth Amendment problem insofar as the possessor of the firearm is concerned. Although the maker of the firearm is required by § 5821 to provide information about the firearm prior to its making, the possessor of the firearm after its making is not required to come forward and give information of any kind to anyone. Neither § 5851 nor § 5821 compels a possessor to incriminate himself in any manner. At least one court, however, has perceived a self-incrimination problem when the same person is both possessor and maker. United States v. Thompson, supra. Self-incrimination in such a case does not occur because of federal law: if the maker of the firearm complies with § 5821 in making it, his continued possession thereafter is completely legal under the National Firearms Act and apparently violates no other federal statute. However, one who completely complies with § 5821 in the making of a firearm may, in the course of his compliance, incriminate himself under state or local law. For example, in a jurisdiction which flatly prohibits the making and possession of sawed-off shotguns, a person who makes a sawed-off shotgun in compliance with § 5821 will incriminate himself under local law by giving the information required on his application to make the firearm. Where circumstances of this nature exist, Thompson held, the privilege against self-incrimination can be asserted by one who is both maker and possessor as a defense to a prosecution under the second provision of §" }, { "docid": "891339", "title": "", "text": "v. United States, 10th Cir.1969, 408 F.2d 1310; Reed v. United States, 8th Cir.1968, 401 F.2d 756. See also DePugh v. United States, 8th Cir.1968, 401 F.2d 346, and Varitimos v. United States, 1st Cir.1968, 404 F.2d 1030. We agree with the reasoning of the Eighth and Tenth Circuits that Haynes does not apply to the making provisions of Section 5851. After analyzing the provisions of Section 5851 and considering the Supreme Court’s opinion in Haynes, the Eighth Circuit concluded: “In this setting, the defendant’s invocation of his privilege against self-incrimination is not well taken, since his offense derived not from his own failure to comply with the making provisions but rather from his possession of the firearm illegally made by others. We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information.” 401 F.2d 762-763. It therefore follows that Anthony E. Burton’s assertion of his privilege against self-incrimination did not provide a full defense to his prosecution under Section 5851. Appellant, in his motion to suppress evidence, objected to the seizure of the shotgun as an illegal search and seizure. This argument is without merit. The illegal firearm was discovered without making a search. It was seen by one of the police officers before and at the time Zearl T. Burton threw it to the side of the road. No search was necessary since the action of Zearl T. Burton brought the weapon clearly into open view. Even if there was a search in a technical sense, the officer was justified in seizing the gun because “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Nunez v. United States, 5th Cir.1967," }, { "docid": "23164149", "title": "", "text": "I as the possessor of an unlawfully made firearm. The requirements imposed under 26 U.S.C. § 5821 (paying the tax on making a firearm), 26 U.S.C. § 5822 (filing a written application to make and register a firearm), and 26 U.S.C. § 5841 (registering a firearm) all fall on the manufacturer or maker and are imposed upon the manufacturer or maker before he makes the firearm. There are no requirements im posed on the possessor of an unlawfully made firearm. We conclude that § 5861(c) does not violate Harflinger’s privilege against self-incrimination guaranteed by the Fifth Amendment. Even under the old act (prior to the 1968 amendments), the charge of possessing an illegally made firearm was not subject to the Haynes defense. Reed v. United States, 401 F.2d 756, 762-763 (8th Cir. 1968), cert. denied, 394 U.S, 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48 (1969); DePugh v. United States, 401 F.2d 346, 351-352 (8th Cir. (1968); Lewis v. United States, 408 F.2d 1310, 1312 (10th Cir. 1969); Marshall v. United States, 422 F.2d 185, 193-198 (5th Cir. 1970). Under the amended act, the possession of an illegally made firearm is illegal and cannot be validated once the illegality attaches to the firearm. Judge Matthes’s reasoning in Reed v. United States is equally applicable to the amended act and the instant case: “We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information.” 401 F.2d at 763. Count II of the indictment charged Harflinger with possessing a firearm which had not been registered to him as provided in 26 U.S.C. § 5841. The Gun Control Act of 1968 provided an amnesty period between November 2 and December 1, 1968, for the possessor of an unregistered firearm. During this period, the possessor could register the firearm without incrimination. Section 207(b) of the Gun Control Act of 1968; Public Law 90-618; 82 Stat. 1235. After the amnesty period there are no provisions in the act" }, { "docid": "23164148", "title": "", "text": "United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Count I charged Harflinger with knowingly possessing a firearm (the bomb) which had been made in violation of 26 U.S.C. § 5822, and Count II charged him with possessing a firearm which had not been registered to him in the National Firearms Registration and Transfer Record as required by 26 U.S.C. § 5841. These counts were brought under the National Firearms Act, 26 U.S.C. Chapter 53, as amended by the Gun Control Act of 1968. 82 Stat. 1227 et seq. The amendments of course were enacted to overcome the adverse effect of Haynes on gun control legislation. Harflinger was not charged under 26 U.S.C. § 5861 (f) as the maker of a firearm but rather was charged in count I as the possessor of an unlawfully made firearm. The requirements imposed under 26 U.S.C. § 5821 (paying the tax on making a firearm), 26 U.S.C. § 5822 (filing a written application to make and register a firearm), and 26 U.S.C. § 5841 (registering a firearm) all fall on the manufacturer or maker and are imposed upon the manufacturer or maker before he makes the firearm. There are no requirements im posed on the possessor of an unlawfully made firearm. We conclude that § 5861(c) does not violate Harflinger’s privilege against self-incrimination guaranteed by the Fifth Amendment. Even under the old act (prior to the 1968 amendments), the charge of possessing an illegally made firearm was not subject to the Haynes defense. Reed v. United States, 401 F.2d 756, 762-763 (8th Cir. 1968), cert. denied, 394 U.S, 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48 (1969); DePugh v. United States, 401 F.2d 346, 351-352 (8th Cir. (1968); Lewis v. United States, 408 F.2d 1310, 1312 (10th Cir. 1969); Marshall v. United States, 422 F.2d 185, 193-198" }, { "docid": "8095556", "title": "", "text": "punish acceptance of the possession of a firearm which was never registered by any prior possessor and permit § 5841 to punish only a present possessor who has failed to register the fact of his possession. The Court noted that, had a phrase analogous to the phrase “at any time” been used in the registration clause as it was in the making clause, the above construction would have clearly been the correct one. The offense under § 5851 of possession of a firearm which was made in violation of the making provisions of § 5821 is aimed only at present possession, and the offense consists of accepting or retaining possession of a firearm made at any time by any person without compliance with § 5821. The offense under § 5821 is aimed only at making the gun without complying with its requirement. The offense is complete and the maker has violated § 5821 when the gun is made without the prior declaration and tax. Since the failure to declare and pay the tax cannot be rectified after the weapon is made, there is no action required or, indeed, permitted of any possessor of a covered weapon made in violation of § 5821 which would prevent such possession from violating § 5851. Thus, unlike the offenses under §§ 5851 and 5841 considered in Haynes, the elements of the offenses under §§ 5851 and 5821 are not identical. See Taylor v. United States, 333 F.2d 721 (10th Cir. 1964) ; Sipes v. United States, 321 F.2d 174 (8th Cir. 1963), cert. denied 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150 (1963). The distinction drawn by the court in Haynes has recently been followed in cases rejecting claims identical to those here made. DePugh v. United States, 401 F.2d 346 (8 Cir. 1968) ; United States v. Taylor, 286 F.Supp. 683 (1968). Thus, the issue of whether the offense under § 5851 of possession of a firearm made in violation of § 5821 is properly distinguishable from the offense under § 5821 of failure to comply with the section’s provisions must be" }, { "docid": "891338", "title": "", "text": "to possess or receive a firearm made in violation of Section 5821. Appellant’s reliance on Haynes, supra, is misplaced. Here, appellant is not charged with failure to register the gun. The crime charged against him is one of present possession. He is charged with a violation of a separate provision of Section 5851, making it unlawful to receive or possess an illegally made firearm. Under the statute, the possessor of such a firearm may not correct the maker’s failure to have disclosed an intention to make such a firearm. Self-incrimination is not required under Section 5851 in its interplay with Section 5821 since it does not compel a possessor to register or otherwise incriminate himself. The Supreme Court in Haynes, supra, indicated that Section 5851 as it relates to Section 5821 punishes receipt or possession of a firearm which has not been made in compliance with Section 5821 rather than failure to comply with Section 5821. Haynes, supra, at 92, 88 S.Ct. 722. This interpretation has been adopted by the Eighth and Tenth Circuits. Lewis v. United States, 10th Cir.1969, 408 F.2d 1310; Reed v. United States, 8th Cir.1968, 401 F.2d 756. See also DePugh v. United States, 8th Cir.1968, 401 F.2d 346, and Varitimos v. United States, 1st Cir.1968, 404 F.2d 1030. We agree with the reasoning of the Eighth and Tenth Circuits that Haynes does not apply to the making provisions of Section 5851. After analyzing the provisions of Section 5851 and considering the Supreme Court’s opinion in Haynes, the Eighth Circuit concluded: “In this setting, the defendant’s invocation of his privilege against self-incrimination is not well taken, since his offense derived not from his own failure to comply with the making provisions but rather from his possession of the firearm illegally made by others. We do not believe the Supreme Court intended that its holding in Haynes should be applied to a situation where, as here, the defendant was under no statutory command to and did not in fact supply any self-incriminating information.” 401 F.2d 762-763. It therefore follows that Anthony E. Burton’s assertion of his privilege" }, { "docid": "2593800", "title": "", "text": "v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969), the Supreme Court, dealing with sellers of marihuana, explicitly distinguishes the earlier line of cases concerning buyers or transferees: “The vice of the statute in that case [Leary] — as in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923-stemmed from the dilemma which confronted the buyer. The statute purported to make all purchases of marihuana legal from the buyer’s viewpoint at his option; all he had to do to avoid the federal penalty was to secure the form and pay the tax. But to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws.” 396 U.S. at 92, 90 S.Ct. at 286-287. And Minor also approved the prospective self-incrimination language used in Mar-chetti, 390 U.S. at 51-52, 88 S.Ct. at 704, 705, Footnote 4. . In this respect, Varitimos v. United States, 404 F.2d 1030 (1st Cir. 1968), cert. denied, 395 U.S. 976, 89 S.Ct. 2126, 23 L.Ed.2d 765 (1969), is distinguishable. That court distinguished Marchetti, noting that under Massachusetts law there was no prohibition “against possession of a firearm lawfully acquired under the National Firearms Act,” 404 F.2d at 1034. . As the Court in Ilaynes noted : “The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms ; mufflers and silencers; and other firearms, except pistols and revolvers, ‘if such weapon is capable of being concealed on the person * * *.’ 26 U.S.C. § 5848(1) ; Treas.Reg. § 179.20, 26 C.F.R. § 179.20. These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.” 390 U.S. at" }, { "docid": "2593796", "title": "", "text": "because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.” 390 U.S. at 53-54, 88 S.Ct. at 705. That the hazard of incrimination presented in the instant case was not trifling or imaginary seems apparent. Ad mittedly, transfer under the Act is not prohibited; it is simply taxed. See Leary v. United States, 395 U.S. 6, 20, 22, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Nor is possession made illegal per se. But possession of a machine gun is, as we have noted, made criminal under the laws of the State of Washington. While the Government is not required under the Act to make its records available to state law enforcement agencies, as was the case with the marihuana tax (Leary) and gambling occupation tax (Marchetti), there was, nevertheless, nothing in the Act as it read at the time of the offense to assure “the necessary confidentiality or immunity to overcome the privilege.” See the opinion of Justice Brennan [concurring] in Grosso v. United States, 390 U.S. at 72-73, 88 S.Ct. at 716. Without such assurance it is difficult to believe that the Government’s laudable concern with the “gangster-type element” would not result in Federal co-operation with state agencies. In fact, the record indicates that it was in part the high level of co-operation between state and Federal officials that resulted in this conviction. Under similar circumstances this court recently held that the requirement of a prospective declaration of intent to violate state laws respecting firearms is subject to the Fifth Amendment privilege. Benner v. United States, supra. Benner was convicted under 26 U.S.C. §§ 5851 and 5821 (declaration of intent to manufacture a firearm). In Oregon it was illegal for a convicted felon to be in possession of a concealable weapon. This court held that if Benner had been a convicted felon at the time of his manufacture of the firearm, that conviction was to be set aside as a violation of his Fifth Amendment rights. 417 F.2d at 425-426. Applying the Benner rationale, we conclude that the effect of the § 5814" }, { "docid": "23021999", "title": "", "text": "For pr e-Haynes decisions see Sipes v. United States, 8 Cir. 1963, 321 F.2d 174, cert. denied, 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150; Mares v. United States, 10 Cir. 1963, 319 F.2d 71. . See Burton v. United States, 5 Cir. 1969, 414 F.2d 261; Lewis v. United States, 10 Cir. 1969, 408 F.2d 1310; Reed v. United States, 8 Cir. 1968, 401 F.2d 756, 761-763, cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48; DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 351-352; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 762-765; United States v. Benner, D.Or.1968, 289 F.Supp. 860; United States v. Casson, D.Del.1968, 288 F.Supp. 86; United States v. Taylor, E.D.Wis.1968, 286 F.Supp. 683. But see United States v. Stevens, D.Minn.1968, 286 F.Supp. 532. . Burton v. United States, 5 Cir. 1969, 414 F.2d 261, 262-263; United States v. Benner, D.Or.1968, 289 F.Supp. 860, 861; United States v. Taylor, E.D.Wis. 1968, 286 F.Supp. 683, 684; see Lewis v. United States, 10 Cir. 1969, 408 F.2d 1310, 1312; Reed v. United States, 8 Cir. 1968, 401 F.2d 756, 763; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 764-765. . See Lewis v. United States, 10 Cir. 1969, 408 F.2d 1310, 1313; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 765; United States v. Casson, D.Del.1968, 288 F.Supp. 86, 89. See also United States v. Stevens, D.Minn.1968, 286 F.Supp. 532, 536. But cf. DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 350-351. . United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 765; see United States v. Stevens, D.Minn.1968, 286 F.Supp. 532, 536; cf. DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 350-351. . The statute as quoted in the text was in effect from 1957 to 1969. In 1969, however, the statute was amended by the Texas Legislature, and it now reads in pertinent part as follows: “No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon [as defined by another" }, { "docid": "20331633", "title": "", "text": "and held that: The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions * * *. Haynes, 390 U.S. at 96, 88 S.Ct. at 730. This is all in sharp contrast to the effect of section 5821, the portion of the statute appellant attacks. A declaration under section 5821 of intention to make a firearm does not simultaneously admit a violation of another section of the National Firearms Act. To be fair to appellant, however, he does not rely on the holding of Haynes, but on the emanations from that case and others, including Grosso and Marchetti. Thus, he points to the likelihood that a person like appellant who makes silencers will transfer them without complying with section 5814 of the Act; accordingly, his registration under section 5821 will facilitate his prosecution. Appellant also argues that silencers are meant to be used on other firearms and his declaration would make him a prime suspect on possible charges involving other weapons. It may be conceded that a person like appellant does not ordinarily make silencers for his own amusement, but we do not think that the incrimination issue is so easily decided. In Varitimos v. United States, 404 F.2d 1030, 1034 (1st Cir. 1968), cert. denied, 395 U.S. 976, 89 S.Ct. 2126, 23 L.Ed.2d 765 (1969), the claim was made that: [E]ven though a firearm is acquired lawfully, its acquisition focuses suspicion on the transferee because of the legislative purpose of the Act. Thus, should a transferee subsequently engage in illegal activity involving a firearm, the order form would provide a link in the chain leading to conviction. The court rejected the argument: [T]he protection of the Fifth Amendment privilege is inapplicable to prospective acts involving only a speculative and insubstantial hazard of incrimination. * * * In Marehetti the fact that 49 states prohibited the very activity disclosed by payment of the tax constituted a real hazard of incrimination. But here there is no prohibition, either state" }, { "docid": "23021974", "title": "", "text": "this self-incriminati,on problem, the Court in Haynes held that a proper assertion of the Fifth Amendment privilege provides a full defense to any prosecution under § 5841 for failure to register a firearm. Moreover, on the basis of its conclusion that the offenses punishable under §§ 5841 and 5851 are not meaningfully distinguishable, the Court held that a proper assertion of the Fifth Amendment privilege provides a full defense to any prosecution under § 5851 for possession of an unregistered firearm. The Court did not consider in Haynes, nor has it considered subsequently, the applicability of the Marchetti-Grosso~ Haynes rationale to prosecutions under the second provision of § 5851 for re eeiving or possessing a firearm “which has at any time been made in violation of section 5821.” Lower courts, however, including this court, have considered this question. See Burton v. United States, 5 Cir. 1969, 414 F.2d 261; Lewis v. United States, 10 Cir. 1969, 408 F.2d 1310; Reed v. United States, 8 Cir. 1968, 401 F.2d 756, 761-768, cert. denied, 394 U.S. 1021, 89 S.Ct. 1637, 23 L.Ed.2d 48; DePugh v. United States, 8 Cir. 1968, 401 F.2d 346, 351-352; United States v. Thompson, D.Del.1968, 292 F.Supp. 757, 762-765; United States v. Benner, D. Or.1968, 289 F.Supp. 860; United States v. Casson, D.Del.1968, 288 F.Supp. 86; United States v. Taylor, E.D.Wis. 1968, 286 F.Supp. 683; United States v. Stevens, D.Minn.1968, 286 F.Supp. 532; see also Moodyes v. United States, 8 Cir. 1968, 400 F.2d 360, 361 n. 2; United States v. Harvey, 7 Cir. 1968, 397 F.2d 526, 527 n. 2. The courts have generally held that the second provision of § 5851 does not present a Fifth Amendment problem insofar as the possessor of the firearm is concerned. Although the maker of the firearm is required by § 5821 to provide information about the firearm prior to its making, the possessor of the firearm after its making is not required to come forward and give information of any kind to anyone. Neither § 5851 nor § 5821 compels a possessor to incriminate himself in any manner. At" }, { "docid": "9524455", "title": "", "text": "actual union of parts in an assembled device. Defendant’s argument that, under such a construction of the term combination, the contents of almost any household would fall within the purview of the Act is without merit, since Section 5845(f) specifically provides that only a “combination of parts either designed or intended for use in converting any device into a destructive device” constitutes a destructive device. In short, defendant’s argument rests on a narrow construction of the terms of the Act which ignores the context in which they are used. The Court denies defendant’s motion to dismiss the indictment on the ground that the registration and identification requirements of the Act are not applicable because he did not possess a firearm defined as a “destructive device”, within the meaning of the Act. See United States v. Lanchli, 371 F.2d 303, 311-13 (7 Cir. 1966); United States v. Kokin, 365 F.2d 595 (3 Cir.), cert. denied, 385 U.S. 987 (1966). ORDER ORDERED that defendant’s motion to dismiss the indictment is denied in all respects. . 26 U.S.C. §§ 5801-72 (Supp. IV, 1965-68), as amended by the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1234, effective November 1, 1968. See 1968 U.S.Code Gong. & Adm.News, pp. 4410-35. . Supra note 1. . 1968 U.S.Code Cong. & Adm.News, p. 4435. . For other post-JJo.j/ree.f decisions rejecting claims of self-incrimination under other sections of the Act, see United States v. Thompson, 420 F.2d 536, 541-44 (3 Cir. 1970) (Sections 5851 and 5821); United States v. Benner, 417 F.2d 421, 423 (9 Cir. 1969) (Sections 5851 and 5821); Burton v. United States, 414 F.2d 261, 262-63 (5 Cir. 1969) (Sections 5851 and 5821); Lewis v. United States, 408 F.2d 1310 (10 Cir. 1969) (Sections 5851 and 5821); Mower v. United States, 402 F.2d 982, 985 (8 Cir. 1968) (Sections 5851, 5861, 5812(b)); Reed v. United States, 401 F.2d 756, 761-63 (8 Cir. 1968) (Sections 5851 and 5821); United States v. Casson, 288 F.Supp. 86 (D.Del.1968) (Sections 5851, 5821, 5811 and 5814); United States v. Taylor, 286 F.Supp. 683 (E.D.Wis.1968) (Sections 5851 and 5821)." } ]

[ { "docid": "3593164", "title": "", "text": "Civil Procedure, No. 52, 28 U.S.C.A. following section 723c; Collier v. Union Central Life Insurance Company, 5 Cir., 100 F.2d 411; Guilford Const. Company, et al., v. Briggs, 4 Cir., 102 F.2d 46. The burden of proof was on the plaintiff to show that it was entitled to recover. This Court, in Champ Spring Company v. United States, 8 Cir., 47 F.2d 1, 3, certiorari denied, 283 U.S. 852, 51 S.Ct. 560, 75 L.Ed. 1459, said: “It was therefore incumbent upon the plaintiff, to entitle it to recover, to show, npt that the defendant had by some illegal method secured these funds, but that the plaintiff had a better right to them than the defendant. * * * Here the burden was on the plaintiff to prove, as against the defendant, its right, in equity and good conscience, to these funds * * The evidence shows that the taxpayer increased the price of its articles to an amount more than sufficient to cover the former prices of the articles, plus the amount of the excise tax, and collected in advance the tax from the purchasers. Under such cir cumstances it cannot be said plaintiff assumed the economic burden of the tax. The taxpayer, after the passage of the act, was in as good a position to sustain its margin of profit on its products as it was before. To permit the taxpayer to recover in this action, when it appears convincingly that the burden of the tax had been shifted to the consuming public, would result in its unjust enrichment. This is opposed to, and condemned by, the principles of equity. If the plaintiff has not borne the burden of the tax, it is not the real sufferer, and therefore in equity and good conscience is not entitled to recover. See United States v. Jefferson Electric Manufacturing Company, supra; Anniston Manufacturing Company v. Davis, 301 U.S. 337, pages 347, 348, 57 S.Ct. 816, 81 L.Ed. 1143. The finding of the court below that the plaintiff -“passed on” the tax to its customers is supported by substantial evidence, and it will" } ]

[ { "docid": "8920591", "title": "", "text": "the shifting of the tax. The appellant’s argument on the facts as to whether the plaintiff bore the burden of the particular taxes exclusively proceeds upon the assumption that the analysis of costs of flour submitted by the taxpayer was erroneous. The evidence does not justify the assumption and it was not error for the trial court to accredit the plaintiff’s evidence. The question as to the jurisdiction of the court to entertain the plaintiff’s suit for refund under the circumstances shown requires reference to the action taken by the taxpayer and the Commissioner with respect to the claim and also to the terms and provisions of the pertinent statutes. On August 4, 1933, the Bethlehem Baking Company, a processor of flour, paid to the Collector of Internal Revenue a tax under the Agricultural Adjustment Act on floor stocks of flour in its possession on July 9, 1933, the date upon which the tax attached under the statute. The taxing provisions of the Agricultural Adjustment Act were later held by the Supreme Court to be unconstitutional and void. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Thereafter Congress enacted Title VII, §§ 901-907 of the Revenue Act of 1936, 7 U.S.C.A. §§ 623 note, 644-649, providing for the refund of taxes which had been levied and collected under the Agricultural Adjustment Act. In order to prevent unjust enrichment by way of refund to anyone who, having paid the tax, had shifted the burden thereof to others, Congress imposed as a condition to refund that the claimant establish to the satisfaction of the Corn- missioner that he had borne the burden of the tax. The validity of this condition has been sustained. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. The Baking Company filed with the Collector on June 28, 1937, upon the form prescribed by the Commissioner, a claim for refund for the amount of the processing tax which it had paid. The claim, which was filed timely (see § 903 of the Revenue Act of" }, { "docid": "3302300", "title": "", "text": "made accordingly. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; Webre Steib Co. v. Commissioner, 324 U.S. 164, 65 S.Ct. 578, 89 L.Ed. 819. It would, therefore, follow that, unlike the Continental Tie and Dumari cases, where all the data was contained in the books and records of the taxpayer, the taxpayer here could not tell whether or not the government would accept the prima facie proof afforded by t'he comparison of margins, and correspondingly no one could be certain that the taxpayer would rely upon its book records for the final determination of the amount of tax actually assumed by it. In the last two mentioned cases the computation of the amount of the claim was a ministerial act, confined within prescribed limits. Here the computation was subject to an adversary administrative proceeding, wherein the rules of evidence applicable in courts of equity of the District of Columbia were to apply. At best the determination in many cases was a difficult one. Webre Steib Co. v. Commissioner, supra. The burden of proof imposed upon the claimant was a heavy one. Franklin Peanut Co. v. Commissioner, 4 Cir., 144 F.2d 979. Impossibility of de termination after the receipt of evidence has been urged as preventing the application of the statute. Anniston Mfg. Co. v. Davis, supra See also affidavit herein attached to application for refund of floor stocks taxes. No weighty inference can be drawn from the fact that the claim was eventually settled after conferences and negotiation. The record does not disclose the basis of the settlement, except to show that it involved other and separate controversies, all of which were disposed of in the one settlement, although as separate items. It'is apparent, however, that either the amount of the claim or the liability therefor was unsettled. One would be obliged to discard the “practical test” to conclude that the amount of Durr’s claim for refund was readily ascertainable in the year 1936. The statute involved, the rules laid down in the reported cases and the act of the taxpayer itself in failing" }, { "docid": "12391230", "title": "", "text": "the sales, they being the first outside the affiliates, in accord with the decision in Bourjois, Inc., v. McGowan, 2 Cir., 85 F.2d 510. We have no occasion to decide now, however, whether the taxes were lawfully assessed and collected. There is a primary reason why this suit cannot be maintained; found in the provisions of Sec. 621(d) of the Revenue Act of 1932, 26 U.S.C.A. end of c. 20. They provide in so far as now material that: “No overpayment of tax under this title shall be credited or refunded * * * in pursuance of a court decision or otherwise, unless the person who paid the tax establishes, * * * (1) that he has not included the tax in the price of the article with respect to which it was imposed, or collected the amount of tax from the vendee, or (2) that he has repaid the amount of the tax to the ultimate purchaser of the article, or unless he files with the Commissioner written consent of such ultimate purchaser to the allowance of the credit or refund.” The record before us establishes beyond any doubt that the plaintiff is “the person who paid the tax” and also that it has not complied with the provisions of the above statute. The limitations so placed upon the recovery of such taxes when paid are valid. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. And this defect in the proof was sufficient in itself to defeat the suit. An attempt has been made to relieve this plaintiff from the necessity for compliance with the statute on the theory that it was not a taxpayer if it was not the taxable manufacturer liable for the tax. The principal amount for which recovery is sought was paid as a tax and unless the plaintiff has sued in the right of the taxpayer it is not easy to find any ground upon which this suit may be maintained at all. But the contention cannot require any discussion of when one is, or is not, technically" }, { "docid": "13576332", "title": "", "text": "bar. The court analyzed in detail the applicable statutes, rules and regulations and approved its previous holding in F. & F. Laboratories v. Commissioner, supra, and Oswald Jaeger Baking Co. v. Commissioner, supra, stating, “We held in those cases that the statute restricted refunds to the particular processor who alone was obligated to pay the processing tax under the taxing statute.” The court held that the slaughterer of the hogs was the first processor within the meaning and purpose of the taxing act, and that the first processor was the subject of the incidence of the tax, and that if they passed it on to another, they did so not by the operation of the statute, but by independent contract, which they had the lawful right to do. See, also, New Consumers Bread Co. v. Commissioner, 3 Cir., 115 F.2d 162. The obligation to pay the tax never having been imposed upon the petitioner here. because it was not the first processor as defined by the taxing statute, it paid the tax to the slaughterer (Armour & Company) by separate contract over which the government had no control. Denial of the right to claim a refund for the taxes which it paid under separate agreement does not violate due process as defined in Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. This is so because the government does not hold money which it exacted from the petitioner by the imposition of an uncon stitutional tax, because the tax was not imposed upon the petitioner, and, therefore, an action for money had and received would not lie. The petitioner not being the first processor as defined in Title VII of the Revenue Act of 1936, and not having paid the tax imposed by the act, is not entitled to claim refund for the tax which it paid to the processor which was liable for the tax. The decision of the Processing Tax Board of Review is affirmed." }, { "docid": "9597736", "title": "", "text": "the latter’s corrected testimony upon redirect examination that price increases were made by the plaintiff prior to August 1, 1933. The only confusion which we have been able to discover is that displayed by the witness which was such as to amply justify the court in refusing to treat his testimony as credible. We are satisfied that the court did not misapprehend Katz’s testimony and that its findings were justified. Accordingly the judgment of the district court is affirmed. CLARK, Circuit Judge, took no part in the decision of this case. United States v. Butler, Jan. 6, 1936, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 347-353, 57 S.Ct. 816, 81 L.Ed. 1143. The Agricultural Adjustment Act, 1933, was enacted May 12, 1933, the rate of the floor tax on cotton was determined July 14, 1933 and the effective date of the imposition of the tax was August 1, 1933. Thus the trial judge states “Edward Katz testified that Plaintiff increased its prices effective August 1, 1933 in the total sum of $1,400.00, and after August 1, 1933 it increased its prices in the total sum of $1,482.10 . . .” While the evidence does not appear to support the definite amount of the earlier price increase mentioned by the trial judge it does clearly support his conclusion that a price increase prior to August 1, 1933 was in fact made." }, { "docid": "3302299", "title": "", "text": "burden of the tax. Claims supported by verified evidence were to be filed, which would warrant the Commissioner in acting thereon. A procedure was outlined by which a comparison was made between the margin of profit received •by the taxpayer'during the period when the taxes were collected with the margin before and after the passage of the Agricultural Adjustment Act. If such comparison showed that the margin to the taxpayer was lower during the period of tax collection, • that fact constituted prima facie evidence that the burden of the tax was to that extent borne by the claimant. If the comparison showed that the margin was not lower, then that fact was prima facie evidence that the taxpayer bore none of the burden of the tax. The presumptions thus created were rebuttable. Either party might offer proof in support of its contention, and such proof is not limited to that referred to in the statute, so that any relevant evidence, including expert testimony, would be competent. The evidence must be weighed, and the decision made accordingly. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; Webre Steib Co. v. Commissioner, 324 U.S. 164, 65 S.Ct. 578, 89 L.Ed. 819. It would, therefore, follow that, unlike the Continental Tie and Dumari cases, where all the data was contained in the books and records of the taxpayer, the taxpayer here could not tell whether or not the government would accept the prima facie proof afforded by t'he comparison of margins, and correspondingly no one could be certain that the taxpayer would rely upon its book records for the final determination of the amount of tax actually assumed by it. In the last two mentioned cases the computation of the amount of the claim was a ministerial act, confined within prescribed limits. Here the computation was subject to an adversary administrative proceeding, wherein the rules of evidence applicable in courts of equity of the District of Columbia were to apply. At best the determination in many cases was a difficult one. Webre Steib Co. v. Commissioner, supra." }, { "docid": "21348994", "title": "", "text": "on the general market price. Furthermore, plaintiff, as pointed out heretofore, in one instance billed the tax as a separate item, and in a few instances included it in its sales price. This was admitted by the plaintiff and such amounts were deducted from its refund claim. Its general manager testified that the vendees would not stand for the addition of the tax and that it was not included in any other sales. The most unfavorable inference which can be drawn from the correspondence is that plaintiff might have, prior to the effective date of the tax, considered or even intended to include it in its sales price. We are of the view, however, that plaintiff’s intention or motive is immaterial. Certainly it is not controlling. The question at issue must be determined on the basis of what was actually done. The numerous cases cited by the respective parties furnish little help in the decision of the instant problem. Hutzler Bros. Co. v. United States, D. C., 33 F.Supp. 801, comes nearest to being in point. There the Government, as here, contended there was a presumption that the tax had been passed on because of the increased selling price. With reference to such contention, the court, at page 805 of 33 F.Supp., said: “But, of course, the obvious fallacy of such an argument is that it completely ignores the numerous other factors, which, as has been disclosed in this case, were the bases for the increased prices, and which, in and of themselves, more than account for the entire increase, —i. e., the inexorable law of supply and demand, degree of competition, etc.” Defendant relies chiefly upon three cases : Honorbilt Products v. Commissioner, 3 Cir., 119 F.2d 797; Luzier’s Inc., v. Nee, 8 Cir., 106 F.2d 130, and C. M. McClung & Co. v. United States, Ct.Cl., 35 F.Supp. 464. In the Honorbilt case the taxpayer concurrently with the imposition of the processing tax, increased the price of its product $2 per item. Of this amount the tax amounted to 67.2^, or about one-third of the increased selling price." }, { "docid": "8920592", "title": "", "text": "unconstitutional and void. United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Thereafter Congress enacted Title VII, §§ 901-907 of the Revenue Act of 1936, 7 U.S.C.A. §§ 623 note, 644-649, providing for the refund of taxes which had been levied and collected under the Agricultural Adjustment Act. In order to prevent unjust enrichment by way of refund to anyone who, having paid the tax, had shifted the burden thereof to others, Congress imposed as a condition to refund that the claimant establish to the satisfaction of the Corn- missioner that he had borne the burden of the tax. The validity of this condition has been sustained. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. The Baking Company filed with the Collector on June 28, 1937, upon the form prescribed by the Commissioner, a claim for refund for the amount of the processing tax which it had paid. The claim, which was filed timely (see § 903 of the Revenue Act of 1936), was based upon the claimant’s assertion that it had borne the entire burden of the tax. The Commissioner advised the claimant by letter that the evidence submitted by the claimant was insufficient to establish that it had borne the burden of the tax and that it would be necessary for the claimant to submit additional evidence. Thereafter the claimant submitted an analysis of costs for periods prior to and subsequent to the effective date of the tax and for periods during which the taxes were in effect. It does not appear that this analysis was under oath. However the Commissioner did not reject the additional evidence on that ground, for by letter acknowledging his receipt of the analysis he wrote the claimant that “This evidence is inadequate as it does not contain any information concerning the bakery products made or the prices charged for such products before or after the effective date of the floor stock tax, July 9, 1933.” After some further correspondence between the claimant and the Commissioner the latter on December" }, { "docid": "9597735", "title": "", "text": "he had previously testified and gave it as his opinion that 'an increase in such an amount upon gross sales of approximately $1,000,000 was drastic. Recalled the following day for re-direct examination the witness testified that the plaintiff did increase its prices prior to August 1, 1933 and that those increases were made necessary by an increase in the cost of materials. The plaintiff argues that the reason the trial judge found Katz’s testimony conflicting was because he did not realize that Katz was referring to two different periods, that is, the period prior to August 1, 1933 to which he referred in his affidavit and redirect examination, and the period subsequent to August 1, 1933, to which he referred in his direct and cross examination. However, we find no evidence that the trial judge was confused on this point for throughout the opinion he differentiates between the two periods and the price increases applicable to each period. Indeed, in holding that the affidavit of the witness was inconsistent with his testimony the court accepted the latter’s corrected testimony upon redirect examination that price increases were made by the plaintiff prior to August 1, 1933. The only confusion which we have been able to discover is that displayed by the witness which was such as to amply justify the court in refusing to treat his testimony as credible. We are satisfied that the court did not misapprehend Katz’s testimony and that its findings were justified. Accordingly the judgment of the district court is affirmed. CLARK, Circuit Judge, took no part in the decision of this case. United States v. Butler, Jan. 6, 1936, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 347-353, 57 S.Ct. 816, 81 L.Ed. 1143. The Agricultural Adjustment Act, 1933, was enacted May 12, 1933, the rate of the floor tax on cotton was determined July 14, 1933 and the effective date of the imposition of the tax was August 1, 1933. Thus the trial judge states “Edward Katz testified that Plaintiff increased its prices" }, { "docid": "12391231", "title": "", "text": "the allowance of the credit or refund.” The record before us establishes beyond any doubt that the plaintiff is “the person who paid the tax” and also that it has not complied with the provisions of the above statute. The limitations so placed upon the recovery of such taxes when paid are valid. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143. And this defect in the proof was sufficient in itself to defeat the suit. An attempt has been made to relieve this plaintiff from the necessity for compliance with the statute on the theory that it was not a taxpayer if it was not the taxable manufacturer liable for the tax. The principal amount for which recovery is sought was paid as a tax and unless the plaintiff has sued in the right of the taxpayer it is not easy to find any ground upon which this suit may be maintained at all. But the contention cannot require any discussion of when one is, or is not, technically a taxpayer, for the statute itself ignores all that and applies in plain language to the “person who paid the tax”. That was the plaintiff. Nor does the plaintiff have any cause of action for the recovery of the taxes it paid aside from whatever has been given by statute. Anniston Mfg. Co. v. Davis, 5 Cir., 87 F.2d 773. Judgment affirmed." }, { "docid": "21348995", "title": "", "text": "point. There the Government, as here, contended there was a presumption that the tax had been passed on because of the increased selling price. With reference to such contention, the court, at page 805 of 33 F.Supp., said: “But, of course, the obvious fallacy of such an argument is that it completely ignores the numerous other factors, which, as has been disclosed in this case, were the bases for the increased prices, and which, in and of themselves, more than account for the entire increase, —i. e., the inexorable law of supply and demand, degree of competition, etc.” Defendant relies chiefly upon three cases : Honorbilt Products v. Commissioner, 3 Cir., 119 F.2d 797; Luzier’s Inc., v. Nee, 8 Cir., 106 F.2d 130, and C. M. McClung & Co. v. United States, Ct.Cl., 35 F.Supp. 464. In the Honorbilt case the taxpayer concurrently with the imposition of the processing tax, increased the price of its product $2 per item. Of this amount the tax amounted to 67.2^, or about one-third of the increased selling price. The reason given by the taxpayer for the increase was that a competitor had made a similar increase of a like product. It was held that such reason was not sufficient to show it had not passed on the tax. In doing so, however, the court, on page 798 of 119 F.2d, made this significant statement: “ * * * The increase was more than sufficient to take care of the tax and there is nothing in the record to show that the increase in price was due to any increase in the cost of raw materials, of labor or of manufacture generalJy H -i H In the instant case, plaintiff’s increased price was due to the increased market price of the taxable product at the time the tax attached. The Luzier case clearly is not in point. No claim was made that the increased selling price was the result of the increase or replacement cost of the taxpayer’s product. The McClung case was decided by the Court of Claims. There the taxpayer, as to" }, { "docid": "4632159", "title": "", "text": "WHITAKER, Judge. This is a suit to recover floor stocks tax. The principal issue raised is whether or not the plaintiff has shown that it bore the burden of the amount of the tax. This is the only question we think it necessary to consider. Section 902 of the Revenue Act of 1936, 49 Stat. 1648, 1747, 7 U.S.C.A. § 644, provides in part as follows: ■ “No refund shall be made or allowed * * * of any amount paid by or collected from any claimant as tax under the Agricultural Adjustment Act [chapter], unless the claimant establishes * * * to the satisfaction of the trial court “(a) That he bore the burden of such amount and has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly, (1) through inclusion of such amount by the claimant * * * in the price of any article with respect to which a tax was imposed under the provisions of such Act [this chapter], * ’ * * or (3) in any manner whatsoever; * * ” We think it clear from a reading of this section that plaintiff must show as a prerequisite to recovery that it bore the burden of the amount of the tax and has not shifted that burden directly or indirectly. Plaintiff must not only show that it did not pass the tax on as a tax, but 'it must go further and show that it did not recoup the amount of the tax by adding it to the price of the goods sold or in any other way. The cases of Ismert-Hincke Milling Co. v. United States, 90 Ct.Cl. 27; Lash’s Products Co. v. United States, 278 U.S. 175, 49 S.Ct. 100, 73 L.Ed. 251; Continental Baking Co. v. Suckow Milling Co., 7 Cir., 101 F.2d 337; Casey Jones, Inc., v. Texas Textile Mills, 5 Cir., 87 F.2d 454; Johnson v. Scott County Milling Co., D.C., 21 F.Supp. 847; Oswald Jaeger Baking Co. v. Commissioner, 7 Cir., 108 F.2d 375; and the other cases cited in plaintiff’s supplemental brief on" }, { "docid": "23492080", "title": "", "text": "the record is devoid of rational support for a finding that petitioner absorbed some of the tax. Accordingly we must remand the case for a weighing of the evidence, including, of course, such further evidence as the Tax Court may think it proper to receive in view of the way in which the case has been tried. In doing so we intimate no opinion, of course, as to whether petitioner has sustained the burden of proof placed upon it by the statute. Since the case must go back, it is necessary to pass upon a further question raised by petitioner. Petitioner, as we have noted, was not processing during the six months, February to July 1936, designated by the statute for computing margins after the tax period. For such a case the statute provides: “If during any part of such period the claimant was not in business. . . . the average prices paid or received by representative concerns engaged in a similar business and similarly circumstanced may with the approval of the Commissioner, where necessary for a fair comparison, be substituted in making the necessary computations.” § 907 (c). Contending that there were no similarly circumstanced concerns, petitioner sought to use the figures of a later period, that of its own 1936 production, in computing the base-period margins, which would have made those margins higher. We think the Board and the court below were correct in holding that the statutory method of making a prima facie case is exclusive and that the 1936 evidence might not be so used. The statute’s restrictions, however, have reference only to the presumption; they do not exclude other evidence generally relevant on the issue of whether the tax burden was shifted. The 1936 experience, though it could not help petitioner to create a favorable presumption, was entitled to be given whatever probative value it might independently have had and, subject to the usual principles of admissibility, was therefore admissible. Anniston Mfg. Co. v. Davis, 301 U. S. 337, 355-56. The judgment below is modified and the cause is remanded to the Circuit Court" }, { "docid": "4632160", "title": "", "text": "any manner whatsoever; * * ” We think it clear from a reading of this section that plaintiff must show as a prerequisite to recovery that it bore the burden of the amount of the tax and has not shifted that burden directly or indirectly. Plaintiff must not only show that it did not pass the tax on as a tax, but 'it must go further and show that it did not recoup the amount of the tax by adding it to the price of the goods sold or in any other way. The cases of Ismert-Hincke Milling Co. v. United States, 90 Ct.Cl. 27; Lash’s Products Co. v. United States, 278 U.S. 175, 49 S.Ct. 100, 73 L.Ed. 251; Continental Baking Co. v. Suckow Milling Co., 7 Cir., 101 F.2d 337; Casey Jones, Inc., v. Texas Textile Mills, 5 Cir., 87 F.2d 454; Johnson v. Scott County Milling Co., D.C., 21 F.Supp. 847; Oswald Jaeger Baking Co. v. Commissioner, 7 Cir., 108 F.2d 375; and the other cases cited in plaintiff’s supplemental brief on this question are not in point. In none of those cases was there involved the question here presented. In the Ismert-Hincke Milling Co. case, supra, there was no question as to whether or not the burden of the tax had been passed on; it was conceded that it had been. So in the cases of Continental Baking Co. v. Suckow Milling Co., supra, and Casey Jones, Inc., v. Texas Textile Mills, supra. In the case of Lash’s Products Company, supra, the purchase price of the goods included the tax, but the court held that the seller had not “passed the tax on,” that what the purchaser had paid was nothing more than the price of the goods to him, and that he had not paid the tax, although the tax was included in the purchase price. The question here, however, is not who paid the floor stocks tax, but whether or not the plaintiff passed on the amount of the tax. If the plaintiff included the amount of the tax in the selling price of" }, { "docid": "21348997", "title": "", "text": "goods purchased on and after August 1, 1933, increased its selling price to include such costs. So far as the opinion discloses, however, the only increase in the cost was the amount of the processing tax, and, of course, when the selling price was raised to include such additional costs, the tax naturally was included and passed on. The taxpayer also, on August 1, had on hand an inventory upon which it paid a floor tax. Some of this inventory was sold at the old price and some was sold at the increased price which applied to the goods purchased subsequent to the effective date of the tax. The taxpayer offered no proof as to how much of the inventory was sold at the old price, and the court held that in the absence of such proof no recovery could be had for even that portion of the inventory. Again no question was raised or decided such as is presented here. Both sides cite and quote from Anniston Manufacturing Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 822, 81 L.Ed. 1143. As we read this case it throws little, if any, light upon the instant situation. It is true the court held the refund statute constitutional and discussed the various paragraphs thereof. It also held that the claimant must show “ * * * where it can be shown, that he alone has borne the burden of the invalid tax and has not shifted it to others.” These matters are not in dispute here. It may be pertinent, however, to note the reason given by the court for requiring such a showing on the part of the claimant. The court, on page 348 of 301 U.S., page 821 of 57 S.Ct., 81 L.Ed. 1143, said: “ * * * While the taxpayer was undoubtedly hurt when hé paid the tax, if he has obtained relief through the shifting of its burden, he is no longer in a position to claim an actual injury and the refusal of a refund in such a case cannot be regarded as a denial" }, { "docid": "8920589", "title": "", "text": "JONES, Circuit Judge. The principal question in this case is whether the matter submitted by the plaintiff taxpayer to the Commissioner of Internal Revenue in support of a claim for refund of taxes paid under the Agricultural Adjustment Act of 1933, 7 U.S.C.A. § 601 et seq., complied sufficiently with the requirements of Title VII, § 902, of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 7 U.S.C.A. § 644 (providing for refund of such taxes), so as to preserve the plaintiff’s standing to sue for the refund following the Commissioner’s disallowance of the claim. The appellant raises a further question as to whether the proofs adduced by the plaintiff at trial were sufficient to warrant the trial court (the case was tried without a jury) in finding that the plaintiff bore the burden of the taxes for which refund is claimed and that the taxpayer had not been relieved thereof or reimbursed therefor and had not shifted the burden, either, directly or indirectly, to others. The trial court found that the plaintiff consumed in the manufacture of its bakery products, within three weeks after payment of the taxes, the flour upon which the taxes had been imposed and that it did not increase the price nor alter the per unit weight of its products made therefrom. As there is sufficient evidence to support the trial court’s findings, we are without power to interfere with them upon appeal. Certainly they are not clearly erroneous. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. See Kuhn v. Princess Lida of Thurn & Taxis, 3 Cir., 119 F.2d 704, 705. In addition to these specific findings there is uncontradicted testimony that the plaintiff did not reduce the wages of its employees during the material period. Nor was there anything shown which would indicate that the plaintiff’s maintenance of the price and weight of its products, despite the tax, was brought about by adulteration of quality or similar compensating artifice. In the light of the record, the findings are dispositive of the appellant’s contention as to" }, { "docid": "21348996", "title": "", "text": "The reason given by the taxpayer for the increase was that a competitor had made a similar increase of a like product. It was held that such reason was not sufficient to show it had not passed on the tax. In doing so, however, the court, on page 798 of 119 F.2d, made this significant statement: “ * * * The increase was more than sufficient to take care of the tax and there is nothing in the record to show that the increase in price was due to any increase in the cost of raw materials, of labor or of manufacture generalJy H -i H In the instant case, plaintiff’s increased price was due to the increased market price of the taxable product at the time the tax attached. The Luzier case clearly is not in point. No claim was made that the increased selling price was the result of the increase or replacement cost of the taxpayer’s product. The McClung case was decided by the Court of Claims. There the taxpayer, as to goods purchased on and after August 1, 1933, increased its selling price to include such costs. So far as the opinion discloses, however, the only increase in the cost was the amount of the processing tax, and, of course, when the selling price was raised to include such additional costs, the tax naturally was included and passed on. The taxpayer also, on August 1, had on hand an inventory upon which it paid a floor tax. Some of this inventory was sold at the old price and some was sold at the increased price which applied to the goods purchased subsequent to the effective date of the tax. The taxpayer offered no proof as to how much of the inventory was sold at the old price, and the court held that in the absence of such proof no recovery could be had for even that portion of the inventory. Again no question was raised or decided such as is presented here. Both sides cite and quote from Anniston Manufacturing Co. v. Davis, 301 U.S. 337," }, { "docid": "4080638", "title": "", "text": "brief a document purporting to establish an alleged \"Rent Expense” charged against its average sales price for gasoline for each of the periods at issue. It was presumably offered in an effort to rebut defendant’s contention of plaintiff’s profitability. We find plaintiff's late attempt to submit an otherwise evidentiary document with its post-trial brief referenced as \"Exhibit I” to be defective as plaintiff rested its case-in-chief on November 21, 2002. This submission therefore cannot be considered as proof that plaintiff had additional cost not covered by its alleged \"keystoning” that affected its profitability. . See supra text accompanying note 16. . Vogel, 147 F.Supp. at 14 (\"Considerations of policy and sound administration compel that a taxpayer's naked assertion be held insufficient to satisfy the requirements of Sec. 3443(d)(1) [6416(a)'s predecessor] when it is apparent that other more inherently reliable evidence could have been produced or when there has been no showing that competent corroborative evidence is unavailable.”). . In Gumpert, the court criticized that \"¡T]he only evidence in the instant case that plaintiffs have borne the economic burden of the tax is a naked allegation by the plaintiffs that they carried the tax as an expense of doing business, hence they paid the tax. The evidence does not substantiate this contention.” 155 Ct.Cl. at 724, 296 F.2d 927. . See also GorDag Industries, Inc. v. United States, 63-2 U.S. Tax Cas. (CCH) 1115,532 at 90,565, 1963 WL 12684 (D.Minn. 1963) (\"Uncorroborated testimony by the plaintiff’s president, an interested party, is not enough evidence standing alone to prove that the tax was not passed on.”). . Stelco Holding Co. v. United States, 42 Fed.Cl. 101, 107-08 n. 14 (1998) (\"[U]nder the adverse inference rule, [] . when a party has relevant evidence within its control and fails to produce such [or to explain such failure], that failure raises the presumption that if in fact produced, it would be unfavorable to its cause.' ”) (citations omitted); Cavalier Clothes, Inc. v. United States, 51 Fed. Cl. 399, 420 n. 28 (2001) (quoting Interstate Circuit, Inc. v. United States, 306 U.S. 208, 226, 59" }, { "docid": "12724809", "title": "", "text": "taxpayer, after the statute of limitations has run, or in an action in court to recover the tax, cannot shift “to a totally different ground for such refund.” United States v. Garbutt Oil Company, 58 S.Ct. 320, 322, 82 L.Ed. —, decided January 3, 1938. “The United States has consented to be sued by a taxpayer for the recovery of a tax alleged to have been illegally exacted and paid only in cases where the grounds asserted in the suit have been presented to and passed upon by the Commissioner of Internal Revenue.” Taber v. United States, 8 Cir., 59 F.2d 568, 571; United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025. The second ground of recovery not having been called to the attention of the Commissioner appellant cannot rely upon it in an action in court. Second, the taxpayer, before he can maintain a suit in court to recover a tax erroneously paid, must first pursue the administrative remedy to a conclusion. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 342, 57 S.Ct. 816, 818, 81 L.Ed. 1143. Generally, when a matter is subject to the determination of an administrative officer courts refuse to interfere until the administrative remedy has been invoked and exhausted. First National Bank of Greeley v. Weld County Com’rs, 264 U.S. 450, 44 S.Ct. 385, 68 L.Ed. 784; McGregor v. Hogan, 263 U.S. 234, 44 S.Ct. 50, 68 L.Ed. 282; Gorham Mfg. Co. v. Tax Commission, 266 U.S. 265, 269, 45 S.Ct. 80, 69 L.Ed. 279; City of Springfield v. Hotel Charles Company, 1 Cir., 84 F.2d 589. In the instant case the appellant made no attempt in its claim, nor otherwise in so far as appears, to take advantage of the provisions of article 209 of Regulations 69 under the Revenue Act of 1926 to secure a revision of the depletable reserves. It is not in a position, therefore, to demand that the court revise the original estimate. Appellant claims, however, “that no actual revaluation to a specific figure is necessary” to entitle it to recover," }, { "docid": "22633260", "title": "", "text": "judgment” and the Commissioner is required to make refund of any amount which may thus be determined to be due the claimant. Fourth. The question then is whether, despite this broad right of judicial review of the action of the Board, the administrative scheme has such inherent constitutional defects that the petitioner should not be remitted to that procedure. The inquiry has particular relation to the provisions (1) as to burden of proof, § 902, (2) as to presumptions, § 907, and (3) as to certain matters of administrative detail. The burden of proof. — Section 902, the full text of which is set out in the margin,* provides that no refund shall be allowed unless the claimant establishes to the satisfaction of the Commissioner, or of the trial court, or of the Board of Review in cases under § 906, that the claimant bore the burden of the amount paid as tax and “has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly” (1) through the inclusion of the amount paid in the price of the product, (2) through reduction of the price paid for the raw material, or (3) “in any manner whatsoever.” According to the allegations of the complaint, the petitioner initially did bear the burden of the unconstitutional tax, as petitioner paid it. The question for administrative determination is whether the burden of that payment has been shifted. So far as petitioner’s contention may be taken to be that it is entitled to recover by reason of the invalidity of the tax, although in fact its burden has been “passed on” to another, the contention cannot be sustained. While the taxpayer was undoubtedly hurt when he paid the tax, if he has obtained relief through the shifting of its burden, he is no longer in a position to claim an actual injury and the refusal of a refund in such a case cannot be regarded as a denial of. constitutional right. That question was decided in United States v. Jefferson Electric Co., 291 U. S. 386, and the controlling principle as" } ]

[ { "docid": "20061839", "title": "", "text": "created right is at issue, our exercise of personal jurisdiction generally must comport with the Wisconsin long-arm statute, Wis.Stat. § 801.05, which must be liberally construed in favor of the exercise of jurisdiction, Federated Rural Elec. Ins. Corp. v. Inland Power and Light Co., 18 F.3d 389 (7th Cir.1994), and with the due process clause of the Fifth Amendment. Hayeland v. Jacques, 847 F.Supp. 630, 631 (E.D.Wis.1994) (Randa, J.); Brunswick Corp. v. Suzuki Motor Co., Ltd., 575 F.Supp. 1412, 1416 n. 2 (E.D.Wis.1983) (Reynolds, C.J.). Here, the evidence demonstrates that the defendants were “engaged in substantial and not isolated activities within this state,” Wis. Stat. § 801.05(l)(d), and that “[pjroducts ... serviced or manufactured by the defendants were used or consumed within this state in the ordinary course of trade.” Wis.Stat. § 801.05(4). In addition, the defendants have significant national contacts. Nothing more is required. See Hayeland, 847 F.Supp. at 633-634 (relying on United Rope Distributors, Inc. v. Seatriumph Marine Corp., 930 F.2d 532, 536 (7th Cir.1991)); Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668, 671-72 (7th Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 700 (1988). See also Handley v. Indiana & Michigan Elec. Co., 732 F.2d 1265, 1269 (6th Cir.1984). In any event, we note, the defendants effectively have waived any jurisdictional defense by failing to join it in the present motion. Fed.R.Civ.P. 12(h)(1). See Pillar Corp. v. Enercon Industries Corp., 1989 WL 77667, *1 (E.D.Wis.1989) (Stadt-mueller, J.). Whereas we thus have personal jurisdiction over the defendants, they are deemed to reside, and venue properly lies, in the Eastern District of Wisconsin. The defendants’ motion to dismiss or transfer pursuant to Section 1406(a), therefore, will be denied. Even when venue properly lies, however, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Plainly, this action might have been brought in the Southern District of New York. The evidence demonstrates that the defendants, at the very least, “transact[ ]" } ]

[ { "docid": "22947024", "title": "", "text": "the forum state, would look to the state’s long-arm statute and then determine whether the exercise of jurisdiction would satisfy due process. In Pennsylvania, whose jurisdictional statute expressly incorporates the federal due process standard, the inquiry is principally one into the constitutional propriety of the exercise of jurisdiction. See Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 489 (3d Cir.1985). While normally we consider constitutional issues only after considering statutory arguments, see Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974), we are here presented with an issue where statutory and constitutional considerations are intertwined. Indeed, because of the nature of the national contacts theory, which seeks to redefine the area of minimum contacts sufficient to satisfy due process and hence to provide a federal test of amenability to suit, a greater importance attaches to the due process inquiry at the very outset. A. Because this action arises under the patent laws, the due process clause of the fifth amendment guides the constitutional branch of the jurisdictional inquiry. See DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 283 (3d Cir.1981). The fifth amendment has been construed to impose a general fairness test incorporating International Shoe’s requirement that “certain minimum contacts” exist between the nonresident defendant and the forum “such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); see also Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 1143 (7th Cir.1975); Fraley v. Chesapeake & Ohio Railway, 397 F.2d 1, 4 (3d Cir.1968). In the present case, it is the situs of the requisite minimum contacts that is at issue. Daetwyler argues that because a federal question is raised, a national contacts theory should inform the exercise of the court’s jurisdiction. Under the national contacts theory, the proper inquiry in determining personal jurisdiction in a case involving federal rights is one directed to the totality of a defendant’s contacts throughout the United States. See Edward J. Moriarty" }, { "docid": "7707483", "title": "", "text": "of a defendant’s aggregate contacts with the United States as a whole. Our holding in Pinker and on this appeal is consistent with the Federal Rule of Civil Procedure 4(k)(2). Personal jurisdiction therein is not limited to the defendant’s contacts with a particular federal judicial district or the forum state. We hold further that personal jurisdiction under Section 12 of the Clayton Act is as broad as the limits of due process under the Fifth Amendment. See Go-Video, 885 F.2d at 1415 (“Under the due process component of the Fifth Amendment, a court must consider whether the maintenance of the suit (i.e. the exercise of personal jurisdiction over the defendants to the suit) offends traditional notions of fair play and substantial justice”) (citing Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102-103, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). III. The second issue certified in this appeal is whether we should adopt a first resort rule in favor of the procedures under the Hague Convention, rather than the Federal Rules of Civil Procedure, for jurisdictional discovery from foreign defendants in foreign signatory “host” nations. The appellants argue that jurisdictional discovery in Germany, a Convention signatory nation, should first proceed under the Convention procedures, rather than the Federal Rules. The Convention prescribes certain procedures by which a judicial authority in one contracting nation may request evidence located in another nation. Our Supreme Court rejected a first resort rule in favor of the Convention in a case where personal jurisdiction was not contested and the discovery sought involved only the merits of the case. Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of Iowa, 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987). The appellants argue specifically that we should carve out a narrow exception to the Aerospatiale decision where, as here, personal jurisdiction has yet to be established and the discovery sought is limited to proof of jurisdiction. A. Aerospatiale holds that the Hague Convention" }, { "docid": "16493006", "title": "", "text": "component of the Fifth Amendment, a court must consider whether the maintenance of the suit (i.e. the exercise of personal jurisdiction over the defendants to the suit) offends traditional notions of fair play and substantial justice. See Omni Capital, 108 S.Ct. at 409; International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. The district judge, without adding much to his § 12 analysis discussed above, concluded that exercising jurisdiction over appellants based on their contacts with the United States was consistent with due process. Appellants raise two basic objections to this conclusion, arguing first that the Supreme Court has in dictum rejected the theory which supports the constitutionality of national contacts analysis, and second that the burden of defending the suits in Arizona demonstrates, as a practical matter, the unconstitutional results which follow when national contacts analysis is applied. Neither argument has merit. Appellants’ first contention starts with the following passage from Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982): The requirement that a court have personal jurisdiction flows not from Article III, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Thus, the test for personal jurisdiction requires that “the maintenance of the suit ... not offend ‘traditional notions of fair play and substantial justice.’ ” 456 U.S. at 702-03, 102 S.Ct. at 2104-05 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158) (footnote omitted). Appellants claim that this language rejects the notion that personal jurisdiction should be assessed by reference to the contacts with the Nation when the federal sovereign has provided for the cause of action. Furthermore, appellants contend, the federal cause of action theory is the only one that supports national contacts analysis. Their argument is fallacious, because it both reads too much into the Bauxites dictum and incorrectly describes the analytical basis for the national contacts approach. Two observations are in order" }, { "docid": "9767921", "title": "", "text": "state. Id. at 534. Rather, the court is implementing national policy and minimum contacts with the United States, not just the forum state, is the determinative factor. Id. In Omni, 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), the United States Supreme Court implicitly rejected the due process analysis undertaken by the Sixth Circuit in Handley. In Omni, the Court held that the district court in Louisiana could not assert personal jurisdiction over two non-resident defendants, a British corporation and a resident and citizen of the United Kingdom. The cause of action was based upon federal substantive law, the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (CEA), and personal jurisdiction was asserted under the long-arm statute of Louisiana. However, the terms of the state’s long-arm statute had not been met and personal jurisdiction was found lacking. First, the Court found that Congress did not implicitly authorize national service of process in a private cause of action under the CEA. Second, the Court did not disturb the district court’s finding that the terms of the Louisiana long-arm statute had not been met, and therefore, Fed.R.Civ.P. 4 did not authorize service of summons pursuant to the State’s long-arm statute. Finally, the Court held that it would not fashion a body of federal common law allowing for service of summons for federal-question causes of action where Congress failed to provide a statutory guide for such service. Indeed, the court stated: A narrowly tailored service of process provision, authorizing service on an alien in a federal-question case when the alien is not amenable to service under the applicable long-arm statute, might well serve the ends of the CEA and other federal statutes. It is not for the federal courts, however, to create such a rule as a matter of common law. That responsibility, in our view, better rests with those who propose the Federal Rules Of Civil Procedure and with Congress. Omni, 484 U.S. at 111, 108 S.Ct. at 413. Thus, in Omni the Supreme Court was well aware of the anomaly of having federal courts rely upon state long-arm" }, { "docid": "9767920", "title": "", "text": "of a state’s long-arm statute to assert personal jurisdiction over a non-resident of the forum state when a federal question supplies the basis of subject-matter jurisdiction. United Rope Distributors v. Seatriumph Marine, 930 F.2d 532 (1991). Although the precise question presented to the Sixth Circuit in Handley was not squarely presented to the Seventh Circuit, in a lengthy discussion concerning the district court’s authority to assert personal jurisdiction over a non-resident through Wisconsin’s long-arm statute and Fed.R.Civ.P. 4, Judge Easterbrook indicated that the court was sympathetic to analysis of the Sixth Circuit. Judge Easterbrook stated that a federal district court should not be kept from asserting personal jurisdiction over a non-resident defendant in regard to a federal claim because of the inadequacies of a state’s long-arm statute. Seatriumph, 930 F.2d 534-36. When a federal district court is presented with a federal question, the court is not implementing any sort of state policy as in the usual diversity case where one of the goals of the federal court is to safeguard the citizens of the forum state. Id. at 534. Rather, the court is implementing national policy and minimum contacts with the United States, not just the forum state, is the determinative factor. Id. In Omni, 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), the United States Supreme Court implicitly rejected the due process analysis undertaken by the Sixth Circuit in Handley. In Omni, the Court held that the district court in Louisiana could not assert personal jurisdiction over two non-resident defendants, a British corporation and a resident and citizen of the United Kingdom. The cause of action was based upon federal substantive law, the Commodity Exchange Act, 7 U.S.C. § 1 et seq. (CEA), and personal jurisdiction was asserted under the long-arm statute of Louisiana. However, the terms of the state’s long-arm statute had not been met and personal jurisdiction was found lacking. First, the Court found that Congress did not implicitly authorize national service of process in a private cause of action under the CEA. Second, the Court did not disturb the district court’s finding that the" }, { "docid": "6204972", "title": "", "text": "111 S.Ct. 712, 112 L.Ed.2d 701 (1991); Fed.R.App.P. 3(c). Since the instant appeal, Fed.R.App.P. 3(c) has been amended. We might have a different result under the new rule. . The plaintiffs sued individual partners of Buch-man, Buchman & O’Brien as well as the law film; we refer to them collectively as “Buch-man.” . Section 78aa provides: The district courts of the United States ... shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violations occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.... . In his dissent. Judge Garza argues that Baux-ites prohibits the national contacts approach. The Supreme Court, however, apparently disagrees because on two occasions after Bauxites the Court deliberately ducked the national contacts question. See Asahi, 480 U.S. at 111 n. *, 107 S.Ct. at 1032 n. *; Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 103 n. 5, 108 S.Ct. 404, 409 n. 5, 98 L.Ed.2d 415 (1987). By reaffirming the national contacts approach, we are following every other federal circuit that has faced this issue after Bauxites. EMILIO M. GARZA, Circuit Judge, dissenting: The majority holds (1) that “[t]he Southern District of Texas has [subject matter] jurisdiction under § 78aa” and (2) that “[g]iven that the relevant sovereign is the United States, it does not offend traditional notions of fair play and substantial justice to exercise personal jurisdiction over a" }, { "docid": "4186133", "title": "", "text": "Basis for In Personam Jurisdiction over Aliens in Federal Question Suits, 70 Calif.L.Rev. 686, 690-93 (1982); and Note, Alien Corporations and Aggregate Contacts: A Genuinely Federal Jurisdictional Standard, 95 Harv.L.Rev. 470 (1981); with Charles Alan Wright & Arthur R. Miller, 4 Federal Practice & Procedure § 1075 at 312-13 (1969 & Supp.1983). Our sympathies lie with the minority view. “[Ujnder the circumstances” is a slim thread on which to hang a conclusion that federal courts exercising national powers should pretend that they are state courts exercising state powers. The language was added to Rule 4(e) in 1963, and the Advisory Committee’s notes do not discuss this subject. The language more naturally refers to the “circumstances” identified in the state statutes. Federal courts acquire personal jurisdiction only to the extent the state law authorizes service of process. When the state law authorizes this service (as Wisconsin’s § 801.05(5)(c) does here), the federal court has jurisdiction unless the Constitution bars the door. Whether it does depends on all of the circumstances of the case — not only the defendant’s activities, but also the fact that the court is exercising national power. It is more anomalous to dismiss on “constitutional” grounds a suit that is within the constitutional power of the national judiciary than it is to say that a long-arm statute is unconstitutional as applied in state court but valid as applied in federal court. Sympathies are not enough to get United Rope another shot in the district court, however.. We do not decide which of the two readings of Rule 4(e) to adopt, because United Rope did not present the contention for decision. Instead of relying on Rule 4(e), it asked us to create national common law. Its brief does not mention Omni —or for that matter our decisions in Lisak and Fitzsimmons. When asked at oral argument whether United Rope was relying on § 801.05(5)(c) and Rule 4(e) jointly as the basis of a national contacts approach, its counsel repeatedly reasserted that the argument was based on common law, and this despite repeated reminders that Omni closed that route decisively." }, { "docid": "16493005", "title": "", "text": "Clayton Act, and process served on alien corporation under § 12, national contacts analysis appropriate); First Federal Savings & Loan v. Oppenheim, Appel, Dixon & Co., 634 F.Supp. 1341, 1345 (S.D.N.Y.1986); Bucyrus-Erie, 550 F.Supp. at 1043. See also Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 Va.L.Rev. 85,132 (1983) (“federal statutes conferring ‘world-wide service of process’ also permit a federal court to base its in personam jurisdiction upon the aggregate contacts [with the United States] of an alien defendant”). In light of Vigman and these other decisions, we believe that the district judge clearly correct in his view and that the worldwide service provision of § 12 justifies its conclusion that personal jurisdiction may be established in any district, given the existence of sufficient national contacts. B. Constitutional Considerations Having determined that the district judge correctly concluded that Clayton Act § 12 “potentially confers personal jurisdiction over the [appellants],” Amba Marketing Systems, 551 F.2d at 787, we turn to his inquiry into the constitutional aspects of the exercise of personal jurisdiction. Under the due process component of the Fifth Amendment, a court must consider whether the maintenance of the suit (i.e. the exercise of personal jurisdiction over the defendants to the suit) offends traditional notions of fair play and substantial justice. See Omni Capital, 108 S.Ct. at 409; International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. The district judge, without adding much to his § 12 analysis discussed above, concluded that exercising jurisdiction over appellants based on their contacts with the United States was consistent with due process. Appellants raise two basic objections to this conclusion, arguing first that the Supreme Court has in dictum rejected the theory which supports the constitutionality of national contacts analysis, and second that the burden of defending the suits in Arizona demonstrates, as a practical matter, the unconstitutional results which follow when national contacts analysis is applied. Neither argument has merit. Appellants’ first contention starts with the following passage from Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982): The requirement" }, { "docid": "14561332", "title": "", "text": "here and has never been qualified to do business here. (Id. at ¶¶ 6-7.) Nortek purchased Universal from Sears, Roebuck & Co. in 1986. (Id. at ¶ 8.) Nortek maintains that all of the corporate formalities and structures have been observed between it and its subsidiaries.. (Id. at ¶ 14.) Nortek also claims that none of its employees control or supervise the day-to-day operations of Universal. (Id. at -¶¶ 9-11.) More importantly, Nortek alleges that none of its employees had any involvement in the decision to terminate Hayeland. (Id. at ¶ 12.) Hayeland, however, claims that Nortek employees had significant involvement and control over Universal’s operations. Hayeland claims that Universal department heads and executives would regularly attend quarterly meetings in Wisconsin with Nortek executives who “would provide direction and input into the manner in which we performed our jobs.” (Hayeland Aff. at ¶2.) Hayeland received direction from Nortek executives regarding personnel issues, staffing levels and employee safety programs. (Id. at ¶ 3.) After the publication of Dates and Stelley’s article in the Courier, Hayeland met with Molnar, a Nortek representative, to discuss the article and a related EEOC charge. (Id. at ¶4.) Molnar allegedly gave Hayeland. express directions on how to respond to both. (Id.) Approximately one week later Hayeland was fired, although he was asked to stay on another week to carry out Molnar’s instructions regarding Dates’ allegations. (Id. at ¶¶ 4-5.) LEGAL ANALYSIS I. MINIMUM CONTACTS Generally, there is a two-pronged inquiry on issues of personal jurisdiction. Jurisdiction must be authorized under Wisconsin’s long-arm statute and must not offend the due process clause of the U.S. Constitution. Brunswick Corp. v. Suzuki Motor Co., 575 F.Supp. 1412, 1416 (E.D.Wis.1983). Long-arm jurisdiction is determined with reference to the relevant state statutory provisions, and federal due process usually requires certain “minimum contacts” between the defendant and the forum state such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice”. Shaffer v. Heitner, 433 U.S. 186, 202, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977), quoting International Shoe Co. v. Washington, 326 U.S. 310, 315," }, { "docid": "17474639", "title": "", "text": "process. See, e.g., Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 106, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)(refusing to infer an implied provi sion for nationwide service of process when not specifically authorized by the statute); Max Daetwyler Corp. v. Meyer, 762 F.2d 290, 300 (3d Cir.1985)(“In summary, we hold that in the absence of a governing federal statute providing for nation-wide service of process, in personam jurisdiction may not rest upon an alien defendant’s aggregated contacts with the United States.”). However, the foregoing decisions considered whether nationwide service was permitted in the absence of any statute, rule, regulation, or order. The Omni Capital Court was asked to find an “implied” provision for nationwide service of process, and the Daetwyler Court was asked to apply the “national contacts theory” in a case arising under federal patent law. The issue in those decisions did not directly address whether a rule, such as Bankruptcy Rule 7004(d), was sufficient to authorize nationwide service of process. When considering personal jurisdiction in bankruptcy proceedings, courts view Bankruptcy Rule 7004’s grant of nationwide service of process in light of the Constitutional requirement of fairness. See In re Federal Fountain, Inc., 165 F.3d 600, 602 (11th Cir.1999), Owens-Ill., Inc. v. Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 630 (4th Cir.1997), Diamond Mortgage Corp. of Illinois v. Sugar, 913 F.2d 1233, 1244 (7th Cir.1990). A federal court’s exercise of in personum jurisdiction must be consistent with the Fifth Amendment Due Process Clause, which imposes “a general fairness test incorporating International Shoe’s requirement that certain minimum contacts exist between the non-resident defendant and the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Uni-Marts, 399 B.R. at 406 (quoting Daetwyler, 762 F.2d at 293) (in turn, citing International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The “forum” in bankruptcy cases is “the United States in general, not the particular forum state.” Id. (citing Klingher v. Salci (In re Tandycrafts, Inc.), 317 B.R. 287," }, { "docid": "7707482", "title": "", "text": "may be assessed on the basis of the defendant’s national contacts when the plaintiffs claim rests on a federal statute authoriz■ing nationwide service of process. Pinker, at 369-70 (emphasis in original). See also Dardana Ltd. v. A.O. Yuganskneftegaz, 317 F.3d 202, 207 (2d Cir.2003) (when personal jurisdiction over a foreign corporation is based in essence on the federal long-arm statute, due process analysis involves contacts with the United States as a whole); United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 36 (1st Cir.1999) (same); Fitzsimmons v. Barton, 589 F.2d 330, 333 n. 4 (7th Cir.1979); Mariash v. Morrill, 496 F.2d 1138, 1142-43 (2d Cir.1974) (service of process under § 27 of Securities Exchange Act requires examination of defendant’s contacts with the United States as a whole). We agree with the holdings of our foregoing sister Courts of Appeals and the rationale of our decision in Pinker that have construed the similarly worded Section 27 of the Securities Exchange Act. We hold that personal jurisdiction in federal antitrust litigation is assessed on the basis of a defendant’s aggregate contacts with the United States as a whole. Our holding in Pinker and on this appeal is consistent with the Federal Rule of Civil Procedure 4(k)(2). Personal jurisdiction therein is not limited to the defendant’s contacts with a particular federal judicial district or the forum state. We hold further that personal jurisdiction under Section 12 of the Clayton Act is as broad as the limits of due process under the Fifth Amendment. See Go-Video, 885 F.2d at 1415 (“Under the due process component of the Fifth Amendment, a court must consider whether the maintenance of the suit (i.e. the exercise of personal jurisdiction over the defendants to the suit) offends traditional notions of fair play and substantial justice”) (citing Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102-103, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). III. The second issue certified in this appeal is whether we should adopt a first resort" }, { "docid": "14561340", "title": "", "text": "with this conclusion. When exercising the power of the national sovereign, logic suggests that a federal court is not limited by the same constitutional concerns that limit the power of a state sovereign. Of course, a forum state’s long-arm statute must still be satisfied. That is the primary means by which a federal court acquires jurisdiction over a defendant. But once the requirements of the long-arm statute are met, the only due process concern should be whether the defendant has sufficient national contacts such that the exercise of jurisdiction by the nation’s courts under the nation’s laws does not offend traditional notions of fair play and substantial justice. Here, it is clear that Nortek has extensive contacts with the United States. The only remaining question is whether jurisdiction is satisfied under Wisconsin’s long-arm statute. II. LONG-ARM JURISDICTION Hayeland argues that long-arm jurisdiction is found under Wis.Stats. § 801.-05(l)(d), which is commonly referred to as the “doing business” provision of the statute: A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances: (1) Local presence or status. In any action whether arising within or without this state, against a defendant who when the action is commenced: * * * * * * (d) Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise. Wis.Stat. § 801.05(l)(d). In Brunswick, another branch of this Court interpreting this provision held that the parent-subsidiary relationship is sufficient to confer jurisdiction, for long-arm purposes, so long as the subsidiary carries on sufficient activities in Wisconsin: MELCO and Hitachi contend that even if the Wisconsin activities of their subsidiaries are deemed relevant to jurisdiction over them as parents, the contacts with the forum are not sufficient under section 801.-05(l)(d). The Court holds, on the contrary, that the totality of the parents’ contacts with Wisconsin satisfies the requirements of the state long-arm statute. Although the mere fact of a parent-subsidiary relationship alone mil not support jurisdiction over the" }, { "docid": "22084423", "title": "", "text": "sufficient “minimum contacts” exist to satisfy the Due Process Clause of the Fourteenth Amendment so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)); Alexander Proudfoot Co., 877 F.2d at 919; see Omni Capital Int’l, 484 U.S. at 104, 108 S.Ct. at 409; Williams Electric Co., 854 F.2d at 391; Delong Equip. Co., 840 F.2d at 847. When jurisdiction is based on a federal question arising under a statute that is silent regarding service of process, Rule 4(e) of the Federal Rules of Civil Procedure requires that both assertion of jurisdiction and service of process be determined by state amenability standards, or the state long-arm statute. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985); DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1265-66 (5th Cir.1983); see Omni Capital Int’l, 484 U.S. at 105, 108 S.Ct. at 410; Delong Equip. Co., 840 F.2d at 847. While jurisdiction exists in the district court for copyright and communications statutory violations, there is no service of process provision for either statute. See 28 U.S.C. §§ 1331, 1338 (1982). Accordingly, Rule 4(e) directs us to the Florida long-arm statute in order to determine the amenability of nonresident defendants-appellants to jurisdiction in Florida. Fla.Stat. § 48.193 (1987); see Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F.2d 1107, 1108 (5th Cir.1976); see also Rebozo v. Washington Post Co., 515 F.2d 1208, 1212 (5th Cir.1975) (The intent of the Florida long-arm statute has been interpreted to “further facilitate the state’s power to act extraterritorially.”). Since the extent of the long-arm statute is governed by Florida law, “federal courts are required to construe it as would the Florida Supreme Court.” Oriental Imports & Exports, Inc. v. Maduro & Curiel’s Bank, N.V., 701 F.2d 889, 890-91 (11th Cir.1983). The Florida Supreme" }, { "docid": "22084422", "title": "", "text": "the complaint as true, to the extent that they are uncontroverted by the defendant’s affidavits. Id.; Delong Equip. Co., 840 F.2d at 845. Where the parties’ affidavit and deposition evidence conflict, the district court must construe all reasonable inferences in favor of the plaintiff. Morris, 843 F.2d at 492; Delong Equip. Co., 840 F.2d at 845. The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis by the federal courts. Alexander Proudfoot Co., 877 F.2d at 919; see Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104-05, 108 S.Ct. 404, 409-10, 98 L.Ed.2d 415 (1987); Williams Electric Co. v. Honeywell, Inc., 854 F.2d 389, 391 (11th Cir.1988) (per curiam); Delong Equip. Co., 840 F.2d at 847. First, we must examine the jurisdictional issue under the state long-arm statute. Alexander Proudfoot Co., 877 F.2d at 919; Delong Equip. Co., 840 F.2d at 847; see Omni Capital Int’l, 484 U.S. at 104-05, 108 S.Ct. at 409-10; Williams Electric Co., 854 F.2d at 391. Second, we must ascertain whether or not sufficient “minimum contacts” exist to satisfy the Due Process Clause of the Fourteenth Amendment so that “maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)); Alexander Proudfoot Co., 877 F.2d at 919; see Omni Capital Int’l, 484 U.S. at 104, 108 S.Ct. at 409; Williams Electric Co., 854 F.2d at 391; Delong Equip. Co., 840 F.2d at 847. When jurisdiction is based on a federal question arising under a statute that is silent regarding service of process, Rule 4(e) of the Federal Rules of Civil Procedure requires that both assertion of jurisdiction and service of process be determined by state amenability standards, or the state long-arm statute. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985); DeMelo v. Toche Marine," }, { "docid": "6204973", "title": "", "text": "or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.... . In his dissent. Judge Garza argues that Baux-ites prohibits the national contacts approach. The Supreme Court, however, apparently disagrees because on two occasions after Bauxites the Court deliberately ducked the national contacts question. See Asahi, 480 U.S. at 111 n. *, 107 S.Ct. at 1032 n. *; Omni Capital Int’l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 103 n. 5, 108 S.Ct. 404, 409 n. 5, 98 L.Ed.2d 415 (1987). By reaffirming the national contacts approach, we are following every other federal circuit that has faced this issue after Bauxites. EMILIO M. GARZA, Circuit Judge, dissenting: The majority holds (1) that “[t]he Southern District of Texas has [subject matter] jurisdiction under § 78aa” and (2) that “[g]iven that the relevant sovereign is the United States, it does not offend traditional notions of fair play and substantial justice to exercise personal jurisdiction over a defendant residing within the United States.” Because the majority confuses the rationales underlying the requirements of subject matter and personal jurisdiction, I respectfully dissent. I agree that “the Southern District of Texas has [subject matter] jurisdiction under § 78aa.” See 15 U.S.C. § 78aa. However, as the Supreme Court made clear in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), the rationale supporting subject matter, as opposed to personal jurisdiction, is different. In Bauxites, the Supreme Court stated the following: Subject-matter jurisdiction ... is an Art. Ill as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign.... None of this is true with respect to personal jurisdiction. The requirement that a court have personal jurisdiction flows not from Art. Ill, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. Id. at 701, 102 S.Ct. at 2104. These fundamental differences between subject matter and" }, { "docid": "23317704", "title": "", "text": "a federal question, a court may exercise specific jurisdiction over a defendant if a rule or statute authorizes it to do so and the exercise of such jurisdiction comports with the constitutional requirements of due process. Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1413 (9th Cir.1989). AT&T argues personal jurisdiction over GBL is authorized by two rules of civil procedure, Rules 4(k)(l)(D) and 4(k)(2), which focus on a. defendant’s contacts with the nation as a whole. Rule 4(k)(l)(D) allows a court to exercise personal jurisdiction over a defendant when service of summons is “authorized by a statute of the United States.” AT&T contends that § 9613(e) of CERCLA permits nationwide service of process and nationwide minimum contacts analysis. See Go-Video, 885 F.2d at 1414 (a defendant’s nationwide contacts can be considered when Congress has authorized worldwide service of process). However, § 9613(e) authorizes nationwide service of process only in actions by the United States; it does not apply in private actions. Cf. Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 106, 108 S.Ct. 404, 410-411, 98 L.Ed.2d 415 (1987) (concluding nationwide service of process is not authorized for an implied right of action under the Commodity Exchange Act even though the Act provides nationwide service of process for all other civil actions brought under it). AT&T argues that personal jurisdiction over GBL is supported by the 1993 revisions to Rule 4(k)(2), which it says “ex pand[ed] the jurisdictional reach of district courts in federal question cases to a national minimum contacts test.” As the advisory committee notes explain, however, the new rule authorizes jurisdiction in federal question cases over defendants who have significant nationwide contacts but are not subject to jurisdiction in any state. Fed.R.Civ.P. 4(k)(2) advisory committee’s note. GBL had virtually no direct contacts within the United States. Alternately, AT&T contends jurisdiction is supported by Rule 4(k)(l)(A), which authorizes jurisdiction over a non-resident defendant who is subject to jurisdiction in the state where the district court is located. Since California’s long-arm statute extends to the limits of due process, see Cal.Code Civ. P. §" }, { "docid": "3317297", "title": "", "text": "the immediate area, and encourages local area residents to make further inquiry. The web page states “Your Hometown Bank is Making a Difference.” The page does not say .that First National is there to serve the people of Williamson or the West Virginia county in which it is located. First National is located near the border of Kentucky and West Virginia, immediately adjacent to Pike County, Kentucky. The web page further reflects that questions or comments can be directed to the Bank’s email, “[email protected]” (emphasis added). Given that the Court finds this activity to be sufficient regular solicitation of business, and Plaintiffs’ state and federal claim for tortious injury for discriminatory lending practices arises from and is related to First National’s solicitation of such banking business, the requirements of this provision of the long-arm statute have been satisfied. Although Kentucky’s long-arm statute authorizes the exercise of personal jurisdiction over First National on Plaintiffs’ state and federal discrimination claims, this exercise of jurisdiction must still be consistent with constitutional due process. “The constitutional touchstone of the determination whether an exercise of personal jurisdiction comports with due process ‘remains whether the defendant purposefully established minimum contacts in the forum state.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. at 316 (1945)). The Supreme Court has expressed this personal jurisdiction test as follows: Due process requirements are satisfied when in personam jurisdiction is asserted over a nonresident corporate defendant that has ‘certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (quoting International Shoe Co., 326 U.S. at 316, 66 S.Ct. 154). The Sixth Circuit has established a three-part inquiry to implement the Supreme Court’s requirements for personal jurisdiction: ... First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second," }, { "docid": "16493010", "title": "", "text": "of process. Indeed, a recent Supreme Court decision implies that a national service provision is a necessary prerequisite for a court even to consider ¡a national contacts approach. See Omni Capital, 108 S.Ct. at 409-10 and n. 5 (no need to address national contacts argument where no provision of statute authorized nationwide service). Other cases decided since Bauxites have reached a conclusion similar to ours with respect to that case’s relevance to national contacts issues. See, e.g., Steinberg & Lyman, 690 F.Supp. at 265 (rejecting argument that “Bauxites has worked a fundamental change in the law of personal jurisdiction” and refusing to depart from the Second Circuit’s rule stated in Mariash, supra at 1413); First Federal Savings & Loan, 634 F.Supp. at 1347 (“the legal landscape of personal jurisdiction/due process analysis does not appear to have been fundamentally affected by Bauxites”). We agree with these courts. In light of our conclusion that there is no Supreme Court precedent to the contrary, we adhere to our decision in Vigman that, when a statute authorizes nationwide service of process, national contacts analysis is appropriate. In such cases, “due process demands [a showing of minimum contacts with the United States] with respect to foreign defendants” before a court can assert personal jurisdiction. Vigman, 764 F.2d at 1316; see also Amtrol, 646 F.Supp. at 1172 (when service effected under Clayton Act § 12, personal jurisdiction depends on the “familiar ‘minimum contacts’ analysis[;] [hjowever, the relevant forum is not [the state in which suit is brought], but rather the entire United States.”) Appellants’ second argument is substantially more simple, and more simply dismissed. They advert to the burden placed on an alien defendant who must litigate in Arizona and conclude that this burden, imposed by virtue of national contacts analysis, is inherently violative of the “fair play and substantial justice” elements of due process. We are not persuaded by appellants’ somewhat skeletal argument on this point. As an initial matter, the concerns appellants raise are far more akin to a forum non conveniens argument than to a jurisdictional one. Considerations underlying a non-jurisdictional doctrine like" }, { "docid": "14561339", "title": "", "text": "slim thread on which to hang a conclusion that federal courts exercising national powers should pretend that they are state courts exercising state powers. The language was added to rule 4(e) in 1963, and the Advisory Committee’s notes do not discuss this subject. The language more naturally refers to the “circumstances” identified in the state statutes. Federal courts acquire personal jurisdiction only to the extent the state law authorizes service of process. When the state law authorizes this service ... the federal court has jurisdiction unless the Constitution bars the door. Whether it does depends on all of the circumstances of the case — not only the defendant’s activities, but also the fact that the court is exercising national power. It is more anomalous to dismiss on “constitutional” grounds a suit that is within the constitutional power of the national judiciary than it is to say that a long-arm, statute is unconstitutional as applied in state court but valid as applied in federal court. United Rope, 930 F.2d at 536. (Emphasis supplied.) The Court agrees with this conclusion. When exercising the power of the national sovereign, logic suggests that a federal court is not limited by the same constitutional concerns that limit the power of a state sovereign. Of course, a forum state’s long-arm statute must still be satisfied. That is the primary means by which a federal court acquires jurisdiction over a defendant. But once the requirements of the long-arm statute are met, the only due process concern should be whether the defendant has sufficient national contacts such that the exercise of jurisdiction by the nation’s courts under the nation’s laws does not offend traditional notions of fair play and substantial justice. Here, it is clear that Nortek has extensive contacts with the United States. The only remaining question is whether jurisdiction is satisfied under Wisconsin’s long-arm statute. II. LONG-ARM JURISDICTION Hayeland argues that long-arm jurisdiction is found under Wis.Stats. § 801.-05(l)(d), which is commonly referred to as the “doing business” provision of the statute: A court of this state having jurisdiction of the subject matter has jurisdiction over" }, { "docid": "14561333", "title": "", "text": "with Molnar, a Nortek representative, to discuss the article and a related EEOC charge. (Id. at ¶4.) Molnar allegedly gave Hayeland. express directions on how to respond to both. (Id.) Approximately one week later Hayeland was fired, although he was asked to stay on another week to carry out Molnar’s instructions regarding Dates’ allegations. (Id. at ¶¶ 4-5.) LEGAL ANALYSIS I. MINIMUM CONTACTS Generally, there is a two-pronged inquiry on issues of personal jurisdiction. Jurisdiction must be authorized under Wisconsin’s long-arm statute and must not offend the due process clause of the U.S. Constitution. Brunswick Corp. v. Suzuki Motor Co., 575 F.Supp. 1412, 1416 (E.D.Wis.1983). Long-arm jurisdiction is determined with reference to the relevant state statutory provisions, and federal due process usually requires certain “minimum contacts” between the defendant and the forum state such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice”. Shaffer v. Heitner, 433 U.S. 186, 202, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977), quoting International Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The due process question changes, however, when — as here— it arises in a federal court and jurisdiction is based solely on the presence of a federal question. “When a federally created right is^ at issue, ... the due process clause of the Fifth Amendment rather than that of the Fourteenth Amendment is the focus of analysis.” Brunswick, 575 F.Supp. at 1416, n. 2. This raises an interesting but disputed question: Must the “minimum contacts” necessary under the Fifth Amendment be contacts with the forum state as required under Fourteenth Amendment due process analysis, or may they be contacts with the United States generally. The question is important because, while Nortek has extensive (perhaps exclusive) contacts with the United States, its only significant contact with Wisconsin is the fact that one of its wholly-owned subsidiaries does business here. The 7th Circuit adopts a “national contacts” approach to jurisdiction in only a limited number of cases. Generally, the 7th Circuit acknowledges that “[w]hen a national court applies national" } ]

[ { "docid": "22708743", "title": "", "text": "and to ensure that state-court convictions are given effect to the extent possible under law. See Williams v. Taylor, 529 U. S. 362, 403-404 (2000). To these ends, § 2254(d)(1) provides: “(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States.” As we stated in Williams, § 2254(d)(l)’s “contrary to” and “unreasonable application” clauses have independent meaning. 529 U. S., at 404-405. A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. Id., at 405-406. The court may grant relief under the “unreasonable application” clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id., at 407-408. The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. Id., at 409-410. See also id., at 411 (a federal habeas court may not issue a writ under the unreasonable application clause “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly”). Petitioner contends that the Court of Appeals exceeded its statutory authority to grant relief under § 2254(d)(1) because the decision of the Tennessee courts was neither contrary to nor an unreasonable application of the clearly established law of Strickland. Respondent counters that he is entitled to relief under § 2254(d)(l)’s “contrary" } ]

[ { "docid": "11343129", "title": "", "text": "See Lindh v. Murphy, 521 U.S. 320, 336-37, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEPDA circumscribes a federal court’s power to grant habeas relief to a state prisoner. See Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). When a state court has adjudicated a claim on the merits, we may grant relief only if the state court’s resolution of that claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision can involve an unreasonable application of Supreme Court precedent in one of two ways: “[I]f the state court identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. 1495. “Stated simply, a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. In considering" }, { "docid": "3587075", "title": "", "text": "demands that state-court decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398; see also Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir.2012) (“Section 2254(d), as amended by AEDPA, is a ‘purposefully demanding standard.’ ” (citation omitted)). Accordingly, “[t]o obtain relief, a habeas petitioner must ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Campbell, 674 F.3d at 586 (quoting Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)). Thus, under the “contrary to” clause of § 2254(d)(1), we may grant habeas relief “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts,” see Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring), and review of such issues must be based solely on “the [factual] record that was before the state court.” Pinholster, 131 S.Ct. at 1398. Similarly, we may grant habeas relief under the “unreasonable application” clause of § 2254(d)(1) only if the state court’s application of clearly established federal law was “objectively unreasonable” in light of the evidence presented to the state court, keeping in mind that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410, 120 S.Ct. 1495 (O’Connor, J., concurring); see also Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”). Of course, there are times when § 2254(d) does not apply, most notably when the petitioner presents an argument to us that was not presented to the state courts. In most such cases our analysis is even further restricted;" }, { "docid": "2214482", "title": "", "text": "the merits in State court proceedings,’ 28 U.S.C. § 2254(d), unless the state court’s decision ‘was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,’ § 2254(d)(1).” Johnson v. Upton, 615 F.3d 1318, 1329 (11th Cir.2010) (quoting Berghuis v. Thompkins, - U.S. -, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010)). “The Supreme Court has described this standard as ‘a highly deferential’ one that ‘demands that state-court decisions be given the benefit of the doubt.’ ” Id. (quoting Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)). The decision of a state court is not “contrary to” federal law unless it “contradicts the United States Supreme Court on a settled question of law or holds differently than did that Court on a set of materially indistinguishable facts.” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1355 (11th Cir.2009) (quoting Kimbrough v. Sec’y, Dep’t of Corr., Fla., 565 F.3d 796, 799 (11th Cir.2009)). The decision of a state court is not an “unreasonable application” of federal law unless the state court “identifies the correct governing legal principle as articulated by the United States Supreme Court, but unreasonably applies that principle to the facts of the petitioner’s case, unreasonably extends the principle to a new context where it should not apply, or unreasonably refuses to extend it to a new context where it should apply.” Id. (quoting Kimbrough, 565 F.3d at 799). “The question under [the Act] is not whether a federal court believes the state court’s determination was correct but whether that determination was unreasonable — a substantially higher threshold.” Id. (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)). The Supreme Court has held that “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000)). “To obtain habeas relief" }, { "docid": "2124001", "title": "", "text": "REVIEW This court reviews de novo a district court’s legal conclusions and mixed questions of law and fact and reviews its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court shall not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under the contrary to clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the unreasonable application clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal prin ciple from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Id. To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). To analyze whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, courts look only to the holdings of the Supreme Court’s decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct." }, { "docid": "6369318", "title": "", "text": "as opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision,” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “contrary to” clause of § 2254(d)(1), we may grant relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495. And under the “unreasonable application” clause, we may grant relief only “if the state court identifies the correct governing legal principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. “[A]n unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (emphasis, citation and internal quotation marks omitted). In evaluating whether the application of a rule was unreasonable, we must consider the rule’s specificity. See Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). “The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. Finally, “[w]hen a federal claim has been presented to a state court and the state court has denied relief,” we may “presume[ ] that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011). “Where ... there is no indication suggesting that the state court did not reach the merits of a claim, we have held that a state court reaches a decision ‘on the merits’ even when it fails either to mention the federal basis for the" }, { "docid": "21333358", "title": "", "text": "to a state habeas petitioner on a claim that was adjudicated on the merits in state court unless the state, court’s adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). “Clearly established” . in § 2254(d)(1) “refers to the holdings, as opposed to the dicta,” of the Supreme Court’s, cases at the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). “Contrary to” means the state court applied “a rule different from the governing law set forth in [Supreme Court] cases, or [] it decide[d] a case differently than [the Supreme Court] ha[s] done on a set of materially indistin guishable facts.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). An “unreasonable application” under § 2254(d)(1) occurs when a state court decision (1) “identifies the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular state prisoner’s case,” or (2) “either unreasonably extends a legal principle from [Supreme Court] precedent to a néw context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. at 1520. The “ ‘unreasonable application’ inquiry ... ask[s] whether the state court’s application of clearly established federal law was objectively unreasonable,” id. at 409, 120 S.Ct. at 1521, which “requires the state court decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144 (2003); see also Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (“A state court’s determination that a claim lacks merit precludes federal habeas relief so" }, { "docid": "16132652", "title": "", "text": "to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), our review of underlying state court decisions is limited by the terms of 28 U.S.C. § 2254, as amended by AEDPA. Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Within the framework of AED-PA, a federal court may only grant habeas relief from the judgment of a state court where the state court’s adjudication of the habeas claim, “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Berghuis v. Thompkins, — U.S. —, 130 S.Ct. 2250, 2258, 176 L.Ed.2d 1098 (2010); Johnson v. Upton, 615 F.3d 1318, 1329-30 (11th Cir.2010). In Williams v. Taylor, the Supreme Court interpreted the deferential standard embodied in the “contrary to” or “unreasonable application” prong of AEDPA analysis as follows: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. 529 U.S. at 412-13, 120 S.Ct. 1495, 1522, 146 L.Ed.2d 389 (2000). The Court also explained that, in determining whether a state court’s decision represents an unreasonable application of clearly established federal law, a federal court conducting habeas review “may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”" }, { "docid": "16026279", "title": "", "text": "standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, — U.S. -, -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks and citation omitted). Dennis carries the burden of proving his entitlement to the writ. Id. A decision is “contrary to” federal law if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an “unreasonable application” of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). A decision is based on an “unreasonable determination of the facts” if the state court’s factual findings are objectively unreasonable in light of the evidence presented to the state court. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Our review of a state prisoner’s habeas corpus petition follows a “prescribed path”: first, we determine what arguments or theories supported or could have supported the state court’s decision; second, we ask “‘whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court’ ”; and finally, we ask whether the state court’s decision “ ‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Eley, 712 F.3d at 846-47 (alterations omitted) (quoting Harrington v. Richter, 562 U.S. 86, -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)). Each of the claims at issue in this appeal involves Brady, 373 U.S. at 83, 83 S.Ct. 1194. Brady held that" }, { "docid": "14392073", "title": "", "text": "court reviews de novo a district court’s legal conclusions and mixed questions of law and fact, and reviews its factual findings for clear error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court may not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state courts unless the adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146- L.Ed.2d 389 (2000). Under the'- “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the petitioner’s case. Id. To obtain habeas relief, “a state prisoner must show that the state court’s ruling on the claim being presented in federal, court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). To analyze whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, courts look only to the holdings of the Supreme Court’s decisions as of the time of the- relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Courts consider lower court decisions to the extent" }, { "docid": "11531715", "title": "", "text": "[Defendant] was denied effective representation by counsel in the trial court when counsel did not present scientific evidence that appellant was impaired and unable to understand the events surrounding the making of those statements.” Case Management Order at 1, Davis v. Workman, No. 11-6022 (10th Cir. May 3, 2011). He then renewed his request for a COA, but only on claims 4 to 9, although, as we discuss more fully later, he apparently thinks that he obtained a COA on claim 3. We affirm the district court’s rulings on claims 1 and 2; grant a COA on claim 3 but deny relief; and again deny a COA on claims 4 to 9. We will address the claims in that order after first stating our standard of review. II. STANDARD OF REVIEW Under the Antiterrorism and Effective Death Penalty Act (AEDPA), our review in a § 2254 proceeding is highly deferential. See Cullen v. Pinholster, — U.S. ——, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). For claims adjudicated on the merits in state court, a federal court can grant relief only if the state-court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). As the Supreme Court has explained: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[A]n unreasonable application of" }, { "docid": "15253491", "title": "", "text": "unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. The decision of a state court is contrary to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at” an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court unreasonably applies clearly established federal law “if it correctly identifies the governing legal rale but applies that rale unreasonably to the facts of a particular prisoner’s case.” White v. Woodall, — U.S. -, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014). An incorrect or erroneous application of clearly established federal law is not the same as an unreasonable one; “relief is available under § 2254(d)(l)’s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fair-minded disagreement’ on the question.” Id. at 1706-07 (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). AEDPA deference applies under § 2254(d) even when a state court does not explain the reasoning behind its denial of relief. Richter, 562 U.S. at 99, 131 S.Ct. 770. Federal courts “measure state-court decisions against [Supreme Court] precedents as of ‘the time the state court renders its decision.’” Greene v. Fisher, — U.S. —, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011) (quoting Pinholster, 563 U.S. at 182, 131 S.Ct. 1388). Ineffective assistance of counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a twofold showing: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel" }, { "docid": "3587074", "title": "", "text": "desire to “ ‘channel prisoners’ claims first to the state courts.” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398-99, 179 L.Ed.2d 557 (2011). And because “[t]he federal habeas scheme leaves primary responsibility with the state courts,” id. (quoting Woodford, v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002)), under AEDPA a federal court may not grant a habeas corpus petition unless the state court decision (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). By its own terms, § 2254(d) only applies to those claims “adjudicated on the merits in State court proceedings.” Id. When applicable, § 2254(d) establishes a standard of review that is “difficult to meet, ... [a] highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Pinholster, 131 S.Ct. at 1398; see also Campbell v. Bradshaw, 674 F.3d 578, 586 (6th Cir.2012) (“Section 2254(d), as amended by AEDPA, is a ‘purposefully demanding standard.’ ” (citation omitted)). Accordingly, “[t]o obtain relief, a habeas petitioner must ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Campbell, 674 F.3d at 586 (quoting Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)). Thus, under the “contrary to” clause of § 2254(d)(1), we may grant habeas relief “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts,” see Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d" }, { "docid": "19159513", "title": "", "text": "IV. “We review de novo the grant or denial of a writ of habeas corpus by a district court.” Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir.2013). Thus, we review Hittson’s Estelle claims, Brady claims, and ineffective-assistance claim using the standard established by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 214 — the same standard the District Court used. A. Under AEDPA, if a petitioner’s claims have been “adjudicated on the merits in State court,” a federal court cannot grant habeas relief unless the state court’s adjudication of the claims (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state-court decision is “contrary to” federal law if it either “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” — e.g., by applying the wrong legal standard to a particular claim — or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state-court decision is an “unreasonable application” of Supreme Court precedent if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. at 1520. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410, 120 S.Ct. at 1522. “[S]o long as fairminded jurists could disagree on the correctness of the state court’s decision,” a federal court cannot grant habeas relief. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (citation and quotation marks omitted). Finally, “AEDPA instructs that, when a federal habeas petitioner challenges" }, { "docid": "19036494", "title": "", "text": "Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” clearly established Federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an “unreasonable application” of clearly established Federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08, 120 S.Ct. 1495. Under § 2254(d)(l)’s unreasonable-application clause, the critical point is whether “it is so obvious that a clearly established rule applies to a given set of facts that there could be no ‘fairminded disagreement’ on the question.” White v. Woodall, — U.S. -, 134 S.Ct. 1697, 1706-07, 188 L.Ed.2d 698 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)). The phrase “clearly established Federal law” in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412, 120 S.Ct. 1495. But “because Atkins reserved for the states the task of developing appropriate ways to enforce the constitutional restriction” prohibiting the execution of the intellectually disabled, “federal courts conducting habeas review routinely look to state law that has been issued after the defendant’s state conviction has become final in order to determine how Atkins applies to the specific case at hand.” Black v. Bell, 664 F.3d 81, 92 (6th Cir.2011) (internal quotation marks omitted). This means that where a state-court decision is “contrary to” clearly established state supreme court precedent applying Atkins, the decision is “contrary to Atkins ” for purposes" }, { "docid": "2830520", "title": "", "text": "Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). AED-PA allows federal courts to grant habeas relief only if the state court decision is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). . A state court decision is “contrary to” clearly established federal law if the state court (1) “applies a rule that contradicts the governing law” set forth in Supreme Court precedent or (2) “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different” from that reached by the Supreme Court. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. Interpreting Supreme Court precedent in a manner that adds an additional element to the legal standard for proving a constitutional violation is “contrary to” clearly established federal law. Id. at 393-94, 397, 120 S.Ct. 1495 (reasoning that the Virginia Supreme Court’s interpretation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which increased the burden on petitioners, was “contrary to” Supreme Court precedent). A state court decision is an “unreasonable application of federal law” if the state court “identifies the correct governing legal principle,” but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. A strong case for habeas relief “does not mean the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Habeas relief may not be granted on the basis that the state court applied clearly established law incorrectly; rather, the inquiry is “whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495 (emphasis added). A rule’s unreasonable application corresponds to the specificity of the rule itself: “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Richter, 562 U.S. at 101, 131 S.Ct. 770 (internal quotation marks and citation omitted). “A state court’s determination that a claim lacks merit precludes federal" }, { "docid": "916385", "title": "", "text": "of justice], a petitioner must show that “but for constitutional error at his sentencing hearing, no reasonable juror could have found him eligible for the death penalty under [state] law.” Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir. 1996) (citations omitted). B. Claims that were adjudicated on the merits in the state courts The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides the standard of review. This Court may not grant habeas relief with respect to any claim that has been adjudicated on the merits in state court unless the state court’s decision was (1) contrary to clearly established Federal law; (2) involved an unreasonable application of clearly established Federal law; or (3) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2); see also Harrington v. Richter, 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The phrase “clearly established Federal law” refers to the holdings of the United States Supreme Court that were in existence at the time of the relevant state court decision. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1) are separate bases for reviewing a state court’s decisions.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citing Williams, 529 U.S. at 404-05, 120 S.Ct. 1495): Under § 2254(d)(1), “[a] state court’s decision is 'contrary to’ ... clearly established law if it ‘applies a rule that contradicts the governing law set forth in [the United States Supreme Court’s] cases’ or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a [different] result....’” Michael v. Crosby, 430 F.3d 1310, 1319 (11th Cir. 2005) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003)). A state court’s decision involves an “unreasonable application” of federal law when “" }, { "docid": "16110436", "title": "", "text": "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A decision is “contrary to ... clearly established federal law” pursuant to § 2254(d)(1) if “the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir.2006) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision “involve[s] an unreasonable application of clearly established federal law” pursuant to § 2254(d)(1) if the state court identifies the correct governing legal principle but unreasonably applies that principle to the facts of the prisoner’s case. Clearly established Federal law, as determined by the Supreme Court of the United States, refers to the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state-court decision. Id. at 763 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). The Supreme Court recently decided a series of cases clarifying AEDPA’s contours. See, e.g., Cullen v. Pinholster, 563 U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. -, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011); Renico v. Lett, 559 U.S. -, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010). This case is the first opportunity our en banc Court has had to apply AED-PA subsequent to the Supreme Court’s most recent decisions. In these cases, the Court explained that while AEDPA always requires habeas courts to accord state court decisions significant deference, the nature of the deference is tailored to the legal rule underlying the habeas claim. See Harrington, 131 S.Ct. at" }, { "docid": "6369317", "title": "", "text": "and requests a COA on claims (5) through (7): improper hearsay and bad-acts evidence, ineffective assistance of trial counsel, and cumulative error. II. STANDARD OF REVIEW Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), we must apply a “highly deferential standard” in § 2254 proceedings, one that “demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks omitted). If a claim has been “adjudicated on the merits in State court proceedings,” we may not grant relief under § 2254 unless the state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The phrase “clearly established Federal law, as determined by the Supreme Court of the United States,” id. § 2254(d)(1), “refers to the holdings, as opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision,” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “contrary to” clause of § 2254(d)(1), we may grant relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413, 120 S.Ct. 1495. And under the “unreasonable application” clause, we may grant relief only “if the state court identifies the correct governing legal principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. “[A]n unreasonable application of federal law is different from an incorrect application of federal law. Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously" }, { "docid": "16026278", "title": "", "text": "had jurisdiction over Dennis’s habeas corpus petition under 28 U.S.C. §§ 2241 and 2254. We have appellate jurisdiction under 28 U.S.C. § 1291. Because the District Court did not hold an evidentiary hearing and relied on the state court record, we exercise plenary review and apply the same standard the District Court applied. Eley v. Erickson, 712 F.3d 837, 845 (3d Cir.2013). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal courts reviewing a state prisoner’s application for a writ of habeas corpus may not grant relief “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the claim (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). “This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, — U.S. -, -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal quotation marks and citation omitted). Dennis carries the burden of proving his entitlement to the writ. Id. A decision is “contrary to” federal law if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is an “unreasonable application” of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010). A decision is based on an" }, { "docid": "6019010", "title": "", "text": "was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented to the state courts.” Id.; see 28 U.S.C. § 2254(d). Under the “contrary to” clause, § 2254(d)(1), “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Supreme Court has recently clarified that “review under § 2254(d)(1) is limited to the record that was before the state court....” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). In other words, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 1400; see Bray v. Andrews, 640 F.3d 731, 737 (6th Cir.2011). Under the “unreasonable application” clause, § 2254(d)(1), a federal habeas court may grant the writ only if the state court’s application of clearly established federal law to the facts of the prisoner’s case was objectively unreasonable in light of the evidence presented in the state court proceedings. Williams, 529 U.S. at 409-11, 120 S.Ct. 1495. “[A]n unreasonable application of federal law is different from an incorrect application of federal law,” id. at 410, 120 S.Ct. 1495, such that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Harrington v. Richter, -U.S. -, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). Finally, under the “unreasonable determination” clause, § 2254(d)(2), federal courts must bear in mind that “a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen," } ]

[ { "docid": "22610025", "title": "", "text": "for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. Murray v. Carrier, supra, at 485. The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse-of-the-writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Application of the cause and prejudice standard in the abuse-of-the-writ context does not mitigate the force of Teague v. Lane, 489 U. S. 288 (1989), which prohibits, with certain exceptions, the retroactive application of new law to claims raised in federal habeas. Nor does it imply that there is a constitutional right to counsel in federal habeas corpus. See Pennsylvania v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further”). Although the cause and prejudice standard differs from some of the language in Price v. Johnston, 334 U. S. 266 (1948), it is consistent with Cuddy, Salinger, Wong Doo, and Sanders, as well as our modern" } ]

[ { "docid": "23147300", "title": "", "text": "consideration; at issue is Zayas’s entitlement to make the argument in his Middle District petition for habeas corpus. Since Zayas has previously filed two ha-beas petitions in the Eastern District that have not presented the § 212(c) issue, the government contends that the District Court was correct in dismissing the habeas petition filed in the Middle District. In the District Court, the government relied on (1) 28 U.S.C. § 2244(b), the AEDPA gatekeeping mechanism that requires one who seeks to file a “second or successive” petition in a district court under § 2254 to first obtain the permission of the court of appeals, and, (2) in the alternative, the pre-AEDPA “abuse of the writ” case law embodied in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In this court, the government has refrained from contesting Judge Caputo’s conclusion that the § 2244(b) gatekeeping regime does not govern habeas petitions filed under § 2241. But the government sup ports Judge Caputo’s further conclusion— challenged by Zayas — that McCleskey’s “abuse of the writ” jurisprudence is applicable to, and operates to bar, Zayas’s petition. To understand what Congress, in 1996, sought to do in enacting § 2244(b), one must start with McCleskey, decided five years before. In McCleskey, the Supreme Court comprehensively addressed the problem of “abuse of the writ” presented by sequential habeas filings. The Court undertook to analyze, and to integrate into a systematic whole, the then-existing habe-as statutes and rules and the Court’s own principal prior case discussions of abuse of the writ. The Court announced the following formulation: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts" }, { "docid": "2423978", "title": "", "text": "argument that the presentence report contained the allegations revealed in the 1978 prison report, and that Gayle had no right under New York law to see the presentence report at the time of his sentencing. In addition, the district court should determine when Gayle discovered the 1978 prison report containing the new allegation. If Gayle discovered the prison report before he filed his second habeas petition in 1982, then he would have to show cause why this claim was not raised at that time. We also note in passing that the district court dismissed Gayle’s habeas petition without notice. In McCleskey, the Court explained: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. 111 S.Ct. at 1470. The district court disregarded the state’s failure to plead abuse of the writ because McCleskey was handed down after the state’s response was filed. However, Gayle should have been given an opportunity to show that he did not know of the present ground at the time of his prior petitions. Under the district court’s approach, Gayle suffered under the new relaxed standard for defining abuse of the writ, but did not benefit from the Court’s pronouncement that abuse of the writ must be pleaded with particularity. Presumably, these two elements of the abuse of the writ doctrine work hand in hand. The substantive standard is relaxed, but in return the state has to plead abuse of the writ with particularity to give the defendant an opportunity to respond. For these reasons, it is hereby ordered, adjudged, and decreed that the order of the district court dismissing appellant Gayle’s petition for a writ of habeas corpus is vacated, and the case is remanded for further findings of fact consistent with this opinion. . In his first habeas petition, Gayle was unsuccessful in seeking relief from his conviction on the ground" }, { "docid": "13126758", "title": "", "text": "the district court failed to follow the proper procedure for raising and deciding abuse of the writ, as prescribed by the Supreme Court in McCleskey: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ.... To excuse his failure to raise the claim earlier, petitioner must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. at 1470. The district court failed to observe these required procedures, dismissing McKenzie’s petition without requiring the State to raise its affirmative defenses and without providing him notice or an opportunity to demonstrate cause and prejudice or miscarriage of justice. A petitioner need not anticipate an abuse of the writ defense and plead cause and prejudice or miscarriage of justice in advance. Price v. Johnston, 334 U.S. 266, 291-92, 68 S.Ct. 1049, 1062-63, 92 L.Ed. 1356 (1948). As a necessary corollary, the district court may not rule on an assertion of abuse of the writ without giving the petitioner an opportunity to show cause and prejudice or miscarriage of justice. See Lugo v. Keane, 15 F.3d 29, 31 (2d Cir.1994); Williams v. Whitley, 994 F.2d 226, 232 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993); United States v. Fallon, 992 F.2d 212, 213 (8th Cir.1993); Johnson v. Copinger, 420 F.2d 395, 399 (4th Cir.1969). On appeal, the State defends the sua sponte dismissal by arguing that “[sjummary disposition by the district court was appropriate in this ease, due to the obvious lack of merit of Petitioner’s claims, the fact" }, { "docid": "22475985", "title": "", "text": "from inexcusable neglect. McCleskey, 499 U.S. at 489-91, 111 S.Ct. at 1467-69. The test for determining whether there has been abuse of the writ is the same as the issue of procedural default described in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The procedure to be followed was clearly defined in McCles-key: ... When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and show prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentia-ry hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. Id. at 494, 111 S.Ct. at 1470 (emphasis added). In his Rule 60(b) motion, McQueen raised broad allegations of constitutional violations, including ineffective assistance of counsel on appeal (an allegation apparently lodged against another member of the Department of Public Advocacy, McQueen’s current attorneys) and of some form of organic brain damage (first noticed in 1993, six years after the petition for habeas was filed). Respondent asserted that these allegations amounted to an abuse of the writ and therefore should be stricken. McQueen advances two primary arguments in attacking the district court’s ruling on appeal. First, he claims that he was never given notice that the judge was “inclined” to find an abuse of the writ. That is because there is no such requirement. As McCleskey makes clear, once the respondent has pleaded abuse of the writ, the burden is on McQueen to come forward and show both cause and prejudice with respect to those claims that had not been raised in the initial" }, { "docid": "1640683", "title": "", "text": "the burden of pleading abuse of the writ. The government satisfies the burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at-, 111 S.Ct. at 1470. The Court further stated: Abuse of the writ doctrine examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process. The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habe-as petition. If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim. Id. at -, 111 S.Ct. at 1472 (citations omitted). McCleskey involved a successive federal habeas corpus petition by a state prisoner. Peltier contends that McCleskey applies only to state prisoners and not to federal ones. We held, however, in United States v. Fallon, 922 F.2d 212, 213 (8th Cir.1993) that “[t]he McCleskey standard applies to § 2255 habeas petitions filed by federal inmates.” See also United States v. Flores, 981 F.2d 231, 234-35 (5th Cir.1993) (“McCleskey’s formulation of the abuse of the writ doctrine also governs abuse of the proceedings under section 2255.”) (footnote omitted). Our ruling in Fallon accords with" }, { "docid": "23147301", "title": "", "text": "the writ” jurisprudence is applicable to, and operates to bar, Zayas’s petition. To understand what Congress, in 1996, sought to do in enacting § 2244(b), one must start with McCleskey, decided five years before. In McCleskey, the Supreme Court comprehensively addressed the problem of “abuse of the writ” presented by sequential habeas filings. The Court undertook to analyze, and to integrate into a systematic whole, the then-existing habe-as statutes and rules and the Court’s own principal prior case discussions of abuse of the writ. The Court announced the following formulation: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. 499 U.S. at 494-95, 111 S.Ct. 1454. In 1996, in AEDPA, Congress, concerned that successive habeas petitions filed in federal district courts still seemed to frustrate finality in the criminal process, amended § 2244 so as to impose tighter constraints than McCleskey’s on habeas petitioners invoking § 2254 to present collateral challenges to state criminal convictions. Under § 2244(b) as amended, (1) “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed,” § 2244(b)(1), and (2) a “second or successive" }, { "docid": "22822440", "title": "", "text": "at 1144. It then held that Barapind’s § 2241 petition duplicated the claims presented in his 1994 habeas petition filed in the Central District of California pursuant to INA § 106(a)(10) and dismissed the petition as an abuse of the writ. See id. at 1143-44. Barapind claims that the district court erred because unlike his 1994 petition, he now challenges the BIA’s decision to hold his case in abeyance pending the outcome of the extradition case and seeks only an order compelling readjudication of his asylum application. “The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In MeCleskey, the Supreme Court examined the scope and procedure of the abuse of the writ doctrine: When a prisoner files a second or subsequent habeas petition, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s ... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. 1454. In large part, AEDPA codified the abuse of the writ doctrine and created a “gatekeeping” mechanism restricting the filing of second or successive habeas applications in district court. See Felker v. Turpin, 518 U.S. 651, 663-64, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996); Calderon v. U.S. Dist. Ct., 163 F.3d 530, 538 (9th Cir.1998), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). However, the gatekeeping provisions of AEDPA, as set forth in 28 U.S.C. § 2244, do not apply to all habeas petitions," }, { "docid": "4948624", "title": "", "text": "accordance with'Rule 9(b). Assuming, arguendo, that the claim is not successive but new, and given the caution in Sanders that any doubt should be resolved in favor of Pickens, the Court finds that the claim should also be. addressed pursuant to Rule 9(b) as if it were new. “The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second ... petition for ... writ of habeas corpus.” McCleskey v. Zant, 499 U.S. -, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). The doctrine is typically invoked when a new claim is asserted in a second petition but the claim was available at the time of the first petition. Gilmore v. Delo, 908 F.2d 385, 387 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 20, 111 L.Ed.2d 833 (1990). See also Cornman v. Armontrout, 959 F.2d 727, (8th Cir.1992); Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991). When abuse of the writ is alleged, McCleskey requires the following analysis: [T]he government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s pri- or writ history, identifies the claims that appear for the first time, and alleges that prisoner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. • The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. McCleskey v. Zant," }, { "docid": "4948625", "title": "", "text": "(1991). When abuse of the writ is alleged, McCleskey requires the following analysis: [T]he government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s pri- or writ history, identifies the claims that appear for the first time, and alleges that prisoner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. • The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. McCleskey v. Zant, 499 U.S. at -, 111 S.Ct. at 1470. Respondent has outlined Pickens’ prior writ history with clarity and particularity. Respondent has also identified the claim appearing for the first time and has alleged that Pickens has abused the writ. These allegations having been made, he has the burden to disprove that he abused the writ. He shoulders this burden by establishing cause and prejudice or that a fundamental miscarriage of justice will occur if the claim is not considered. The cause apparently advanced by Pick-ens is that he only now obtained newly discovered evidence tending to support his claim of an involuntary confession, i.e., the affidavit of Jack Lassiter attesting to the threat made by the interrogating officer. As the Court has noted, however, the short answer to this assertion is that the evidence is not newly discovered. Pickens knew of the factual basis for the claim at least by 1981, the year he filed his first petition. In fact, he knew of the básis for the claim the day it arose because he was" }, { "docid": "3394190", "title": "", "text": "claims, however, as we find that Cornman’s petition constitutes an abuse of the writ. A federal court may not address the merits of a state prisoner’s habeas petition if the petition is premised upon a claim that constitutes an abuse of the writ. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). A prisoner abuses the writ of habeas corpus by attempting to assert “grounds for relief ... [that] were available but not relied [upon] in an earlier [habeas] petition.” Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989); Hall v. Lockhart, 863 F.2d 609, 610 (8th Cir.1988), appeal decided, 905 F.2d 1197 (8th Cir.1990). The burden is on the government to plead abuse of the writ. McCleskey, 111 S.Ct. at 1470. This burden is satisfied if the government “notes [with clarity and particularity the] petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that [the] petitioner has abused the writ.” Id. Once the government satisfies this requirement, the burden shifts to the petitioner to show cause for failing to include the delinquent claims in the earlier writ and also to show actual prejudice resulting from the newly alleged errors. See id. But even “[i]f [the] petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.” Id. Here there is no dispute that respondent adequately has pled abuse of the writ, both in the District Court and in this appeal. See Appellee’s Br. at 6; Designated Record at 23 (Respondent’s Response to Order to Show Cause Why a Writ of Habeas Corpus Should not be Granted at 4). Thus, unless a fundamental miscarriage of justice otherwise results, Cornman is entitled to a hearing on the merits of his petition only if he can show cause for failing" }, { "docid": "1640682", "title": "", "text": "the agents at close range, (2) the government abused, coerced and intimidated five specified trial witnesses, including Myrtle Poor Bear, and (3) prior to the murders, the FBI armed the GOONS and condoned or incited hostilities between them and the AIM, of which Peltier was a member. Pel-tier also contends that as a result of the government’s creating an atmosphere of intimidation at trial, the district court imposed excessive and prejudicial security measures. 1. In rejecting these four contentions, the district court applied the standards governing successive petitions for habeas corpus the Supreme Court recently set forth in McCles-key. There the Court stated that “[t]he doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus.” Id. at-, 111 S.Ct. at 1457. The Court described the standards and procedures for determining whether there had been abuse of the writ: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies the burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at-, 111 S.Ct. at 1470. The Court further stated: Abuse of the writ doctrine examines petitioner’s conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process. The requirement of cause in the abuse of the writ context is based on the" }, { "docid": "16763822", "title": "", "text": "Zayas v. INS, 311 F.3d 247, 252 (3d Cir.2002). We review the district court’s decision to deny an evidentiary hearing for abuse of discretion. See Schriro v. Lan- drigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). IV. DISCUSSION A. Legal Framework of Second Applications Under the Abuse-of-the-Writ Standard and the AEDPA Prior to the enactment of the AEDPA in 1996, the “doctrine of abuse of the writ define[d] the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or successive petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). When Goldblum filed his first federal habeas petition in 1991, the law encompassed the abuse-of-the-writ doctrine, which provided that a petitioner could prosecute another such petition only if he could “(1) show cause for, and prejudice from, the omission of his new claim or claims from his earlier petition (i.e., that his proceeding would not constitute an ‘abuse of the writ’), or (2) demonstrate ‘actual innocence.’ ” Minarik, 166 F.3d at 600. The Supreme Court in McCleskey discussed the meaning of “cause” and “prejudice” prongs, and the “narrow exception” of “actual innocence,” as well as the burden-shifting framework when the abuse-of-the-writ doctrine is raised. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause," }, { "docid": "13126757", "title": "", "text": "repetitive” within forty-eight horns after receiving it, the district court made two flagrant errors. First, it wrongly decided that all of McKenzie’s claims were “successive.” A claim is “successive” if it was raised in an earlier petition, or if it fails to raise a ground for relief that is new or different than a claim raised in an earlier petition and determined on the merits. Campbell v. Blodgett, 997 F.2d 512, 515-16 (9th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994). The State concedes that McKenzie has never previously raised most of the claims in his petition, including his Eighth Amendment and Ex Post Facto claims, see parts V & VI infra. It is the abuse of the writ doctrine that applies to claims raised for the first time in a second or subsequent petition. McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991). Here, even if the district court’s order is construed as dismissing the non-successive claims as an abuse of the writ, the district court failed to follow the proper procedure for raising and deciding abuse of the writ, as prescribed by the Supreme Court in McCleskey: When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ.... To excuse his failure to raise the claim earlier, petitioner must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions.... If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Id. at 494-95, 111 S.Ct. at 1470. The district court failed to observe these required procedures, dismissing McKenzie’s petition without requiring the State to raise" }, { "docid": "4413138", "title": "", "text": "doctrine does not preclude a federal habeas court from reaching the merits of Mr. Holmes’ claims, several of his claims are not susceptible to federal review due to petitioner’s abuse of the writ. These claims are ineffective assistance of appellate counsel, denial of a speedy trial, and the Second Circuit brief claim. Petitioner is entitled to federal habeas review of claims contained in a second or successive habeas petition only in the limited circumstances enunciated in 28 U.S.C. § 2244, Rule 9(b) of the Rules Governing Habeas Corpus Proceedings (the “Rules”), and McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Pursuant to Title 28, United States Code, Section 2244(b), a federal court may refuse to entertain a second or subsequent application for federal habeas relief unless the petition alleges a new ground and the petitioner did not deliberately withhold this new ground or “otherwise abuse the writ.” Expanding on this concept, Rule 9(b) provides that A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. § 2244 Rule 9(b). This Rule seeks to promote the finality of state court adjudications and also acknowledges the costs imposed by federal collateral review of state convictions. See Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). In Zant, the Court set forth a framework for analyzing whether a successive application for federal collateral relief that raises new and different grounds constitutes an abuse of the writ. Upon the filing of a second or subsequent habeas petition, the Government bears the burden of pleading abuse of the writ. “The government satisfies this burden if, with clarity, and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused" }, { "docid": "4159427", "title": "", "text": "barred from considering the merits of claims raised in a second or subsequent federal habeas petition. Washington v. Delo, 51 F.3d 756, 759 (8th Cir.), cert. denied, — U.S. -, 116 S.Ct. 205, 133 L.Ed.2d 138 (1995). In determining when such a bar applies, we are guided not only by the statutory standards set forth in 28 U.S.C. § 2244(b) and Rule 9(b) of the Rules Governing Habeas Corpus Cases, but by the court’s own equitable powers. See McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). A. New Claims Rehbein first contends that the district court erred in dismissing as abusive the claims raised for the first time in Rehbein III. In McCleskey v. Zant, the United States Supreme Court announced the principles that govern abuse of the writ claims. There, a state prisoner challenged the constitutionality of his conviction in various state postconviction proceedings and in two federal habeas petitions. McCleskey’s second federal habeas petition contained a ground for relief not raised in his first federal habeas petition. 499 U.S. at 474, 111 S.Ct. at 1459-60. The Eleventh Circuit ordered dismissal of the new claim as an abuse of the writ, and McCleskey appealed, arguing that a new claim is not abusive unless it is deliberately abandoned in a prior proceeding. Id. at 476-77, 111 S.Ct. at 1460-61. The Supreme Court rejected MeCleskey’s argument. Tracing the history of the abuse of the writ doctrine, the Court held that “[ajbuse of the writ is not confined to instances of deliberate abandonment.” Id. at 489, 111 S.Ct. at 1467. Instead, “a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” Id. Therefore, after McCleskey, claims raised or developed for the first time in a second or subsequent habeas are abusive and may not be considered on the merits unless the petitioner demonstrates either cause for his failure to raise them earlier and resulting prejudice, or demonstrates that a fundamental miscarriage" }, { "docid": "22475984", "title": "", "text": "culminated in McQueen’s filing of a motion under Rule 60(b), Fed. R.Civ.P., in the district court, which was denied. The district court refused to reach the merits of the motion, holding that the motion amounted to a successive petition and that the respondent properly claimed an abuse of the writ. The district court properly denied this motion on that ground and, like the district court, we refuse to address the approximately sixty additional issues raised by McQueen. It is now well settled that a successive petition will be considered an abuse of the writ where such a claim is made by the respondent and where the petitioner cannot show cause and prejudice. The leading case on this issue remains McCleskey v. Zant, 499 U.S. 467, 111 S.Ct 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Supreme Court held that abuse of the writ exists when a petitioner fails to raise or otherwise present a claim in his initial petition. Abuse of the writ occurs regardless of whether the failure is from a deliberate choice or from inexcusable neglect. McCleskey, 499 U.S. at 489-91, 111 S.Ct. at 1467-69. The test for determining whether there has been abuse of the writ is the same as the issue of procedural default described in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The procedure to be followed was clearly defined in McCles-key: ... When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and show prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an evidentia-ry hearing if the district court determines" }, { "docid": "3394189", "title": "", "text": "Designated Record] (Petitioner’s Traverse to Respondent’s Response to Order to Show Cause Why a Writ of Habeas Corpus Should not be Granted at 3)). After an evidentiary hearing, the Circuit Court of Texas County, Missouri, denied the motion. The Missouri Court of Appeals affirmed. Cornman v. State, 779 S.W.2d 17, 21 (Mo.Ct.App.1989). In April 1990, Cornman filed his second habeas corpus petition in the District Court. In this petition, as in his 29.15 motion, he alleged that his trial counsel was constitutionally deficient because he failed to investigate or interview alibi witnesses and because he failed to object to the admission of two alleged hearsay statements. However, he made neither of these arguments (hereinafter the “omitted claims”) in his original habeas petition. Respondents noted this fact and urged the District Court to dismiss the petition as abusive. This the District Court declined to do, but it did deny the petition on its merits. Cornman appeals from that decision, reasserting his claims that his counsel was constitutionally deficient. We do not reach the merits of these claims, however, as we find that Cornman’s petition constitutes an abuse of the writ. A federal court may not address the merits of a state prisoner’s habeas petition if the petition is premised upon a claim that constitutes an abuse of the writ. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 1472, 113 L.Ed.2d 517 (1991). A prisoner abuses the writ of habeas corpus by attempting to assert “grounds for relief ... [that] were available but not relied [upon] in an earlier [habeas] petition.” Olds v. Armontrout, 919 F.2d 1331, 1332 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1692, 114 L.Ed.2d 86 (1991); see also Smith v. Armontrout, 888 F.2d 530, 541 (8th Cir.1989); Hall v. Lockhart, 863 F.2d 609, 610 (8th Cir.1988), appeal decided, 905 F.2d 1197 (8th Cir.1990). The burden is on the government to plead abuse of the writ. McCleskey, 111 S.Ct. at 1470. This burden is satisfied if the government “notes [with clarity and particularity the] petitioner’s prior writ history, identifies the claims that appear for the first" }, { "docid": "11090750", "title": "", "text": "invocation of its procedural bar rule to preclude petitioner from raising an effective assistance of counsel claim is in error. 2. Abuse of the Writ Perhaps the greatest irony in the majority’s opinion rests in its conclusion that petitioner has abused the writ. In its repeated application of procedural defaults to petitioner’s claims, the majority completely ignores the state's failure to assert with particularity abuse of the writ to petitioner’s claim of ineffective assistance of counsel on appeal. After the parties briefed their positions before this court and oral argument was heard, the Supreme Court issued a new standard by which we are to review a successive petition for a writ of habeas corpus. McCleskey v. Zant, — U.S. -, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). In McCleskey, the Court for the first time set out that a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. at 72, 97 S.Ct. at 2497-99, applicable to procedural default eases, before a petitioner’s failure to raise the claim in the earlier petition is excused. This “strict liability” standard was set forth to avoid procedural abuses and to ensure the finality of state convictions. Nevertheless, “[wjhen a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes the petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s.” McCleskey, 111 S.Ct. at 1470 (emphasis supplied). The magistrate judge’s recommendation finds that petitioner’s claim of ineffective assistance of counsel was not abusive. The district court adopted wholesale the magistrate judge’s recommendation. I search in vain to find even a hint of writ abuse with regard to this claim in the state’s brief before this court. The state did not file an objection to the magistrate judge’s recommendation, nor has it appealed the district court’s adoption of that conclusion. The claim therefore has been waived and is not properly before" }, { "docid": "4413139", "title": "", "text": "to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ. 28 U.S.C. § 2244 Rule 9(b). This Rule seeks to promote the finality of state court adjudications and also acknowledges the costs imposed by federal collateral review of state convictions. See Sawyer v. Whitley, — U.S. -, -, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). In Zant, the Court set forth a framework for analyzing whether a successive application for federal collateral relief that raises new and different grounds constitutes an abuse of the writ. Upon the filing of a second or subsequent habeas petition, the Government bears the burden of pleading abuse of the writ. “The government satisfies this burden if, with clarity, and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ.” Zant, — U.S. at-, 111 S.Ct. at 1470. The burden then shifts to defendant to demonstrate either cause for the failure to raise the claim and resulting prejudice, or that a fundamental miscarriage of justice will result from refusal to entertain the petition. The Court added that an evidentiary hearing is not required where a district court determines as a matter of law that petitioner cannot satisfy the standard. See id. Where a successive petition contains claims not raised in all prior petitions, these novel or abandoned claims must be denied due to abuse of the writ. See, e.g., Strauch v. Keane, 801 F.Supp. 1271, 1274-75 (S.D.N.Y.1992). Applying the Zant analysis in this case yields a clear conclusion: Petitioner has abused the writ by raising claims in this third habeas petition that were not raised in both prior applications, and thus, these claims are denied. Under Zant, the Government must set forth petitioner’s pri- or writ history, identify first-time claims, and allege abuse of the writ. The D.A. has sustained this burden. In" }, { "docid": "16763823", "title": "", "text": "writ’), or (2) demonstrate ‘actual innocence.’ ” Minarik, 166 F.3d at 600. The Supreme Court in McCleskey discussed the meaning of “cause” and “prejudice” prongs, and the “narrow exception” of “actual innocence,” as well as the burden-shifting framework when the abuse-of-the-writ doctrine is raised. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. McCleskey, 499 U.S. at 494-95, 111 S.Ct. at 1470 (internal quotation marks and citations omitted). “Cause” requires “a showing of some external impediment preventing counsel from constructing or raising the claim.” Id. at 497, 111 S.Ct. at 1472 (internal quotation marks and citation omitted). “[T]he question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.” Id. at 498, 111 S.Ct. at 1472. Accordingly, “[i]f what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.” Id. “Once the petitioner has established cause, he" } ]

[ { "docid": "14581245", "title": "", "text": "the institution of a proceeding within the contemplation of sec. 11, sub. e supra? Mr. Collier in his work on Bankruptcy states with reference to section 11, subdivision e: “Subdivision e operates as a statute of limitations on suits brought in behalf of the estate by the receiver or trustee. The language of the subdivision clearly indicates that it has reference to suits initated subsequent to the time of bankruptcy * * 1 Collier on Bankruptcy, 1186, 14th Ed. 2 Bouv. Law Diet., Rawle’s Third Rev., p. 2730. The article assumes without expressly declaring that the action authorized by this subdivision of the act contemplated legal proceedings rather than mere formalities of filing a claim for refund. Provision for the action taken by the plaintiff in filing its claim for refund is prescribed in the second sentence of section 11, subdivision e, which is inapplicable under the facts. The failure to file the claim prior to March 15, 1940 precluded the plaintiff from thereafter asserting any right to a refund. “No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, * * * until a claim for refund or credit has been duly filed with the Commissioner * * * ” 26 U.S.C.A. Int.Rev.Code, § 3772. The filing of the claim for refund is a condition precedent to maintaining a suit or proceeding. Bryan v. United States, 10 Cir., 99 F.2d 549, certiorari denied 305 U.S. 661, 59 S.Ct. 364, 83 L.Ed. 429. “Application for refund of alleged excessive tax is condition precedent to jurisdiction of court. Red Wing Malting Co. v. Willcuts, [8 Cir.], 15 F.2d 626, 49 A.L.R. 459, certiorari denied 273 U.S. 763, 47 S.Ct. 476, 71 L.Ed. 879, * * 26 U.S.C.A. Int. Rev.Code, § 3772, Note 125. In view of the conclusion heretofore reached and the authorities cited the plaintiff has failed to state a cause of action cognizable in this court." } ]

[ { "docid": "8250438", "title": "", "text": "the debtors’ future tax refunds do constitute projected disposable income subject to administration by the Chapter 13 Trustee. The Court rejects the debtors’ argument that paragraph 16 requiring the turnover of the tax refunds violates the historically-based formula set forth in Bankruptcy Code Section 1325(b)(2) for determining their disposable income. Because this holding may affect numerous other pending Chapter 13 cases, an explanation is merited. When a debtor commences a bankruptcy case, an estate is created consisting of all of the debtor’s legal or equitable interests in property as of the petition date. 11 U.S.C. § 541(a). This collection of interests is referred to as “property of the estate.” 11 U.S.C. § 541. Uneneum-bered, non-exempt property of the estate is available to satisfy the claims of a debt- or’s unsecured creditors. In Chapter 13 cases, property of the estate is even more broadly defined and includes, in addition to the interests specified in Bankruptcy Code Section 541(a), all post-petition legal or equitable interests acquired by the debtor and earnings from services performed by the debtor, after the commencement of the case but before the case is closed, dismissed, or converted to any other type of case under the Bankruptcy Code. 11 U.S.C. § 1306(a) & (b). A debtor’s future federal income tax refund is easily included in the comprehensive definition of “property of the estate” under Bankruptcy Code Sections 541(a) and 1306(a) and (b). In re Lafanette, 208 B.R. 394 (Bankr.W.D.La.1996) (income tax refunds constitute property of the estate pursuant to Bankruptcy Code Sections 541 and 1306) (citing Matter of Doan, 672 F.2d 831, 833 (11th Cir.1982) (the right to a refund is property of the estate, citing Bankruptcy Code legislative history and Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966)); In re Beltz, 263 B.R. 525, 527 (Bankr.W.D.Ky.2001) (all of debtors’ federal and state tax refunds received during the Chapter 13 case are property of the estate); In re Mack, 46 B.R. 652 (Bankr.E.D.Pa.1985) (In a Chapter 13 case, wages earned by a debtor both before and after the petition date are property of" }, { "docid": "8307873", "title": "", "text": "Once that determination is made the court will consider whether the debtor has properly exempted each asset thereby avoiding the trustee’s claim. Herein we are dealing with two specific assets; 1) a contingent asset — an income tax refund for the year in which the Chapter 7 petition was filed and 2) an existing asset — a money account worth $110 on deposit at Dean Witter at the time of filing. I. Property of the Estate Property of the bankruptcy estate, created by commencement of a case under title 11 of the United States Code, is defined by Section 541. That section, in pertinent part, states: (a) .... Such estate is comprised of all the following property, wherever located and by whomever held: (1) ... all legal and equitable interests of the debtor in property as of the commencement of the case. “The scope of the definition is broad and.... [a]t the time an order for relief is filed, virtually all of the debtor’s property becomes property of the bankruptcy estate.” In re Koch, 14 B.R. 64, 65 (Bkrtcy. D.Kansas 1981) “... [I]t is clear that the debtor’s estate includes any and all interest in property he owned, claimed or possessed as of the date of filing his voluntary petition in bankruptcy.” In re DeVoe, 5 B.R. 618, 619 (Bkrtcy.S.D.Ohio 1980) A. Income Tax Refund Debtor filed her Chapter 7 petition on October 19, 1988 and subsequently filed her income tax return for 1988 at the beginning of the following year. At the time final pleadings were submitted to the court the tax refund had not been received and the prospective value was estimated by the debtor to be $2,000. The legislative history of 11 U.S.C. Section 541(a) states that the holding of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966) is followed under the Code and therefore the right to a tax refund is property of the estate. (House Report No. 595, 95th Congress, 1st Session pg. 367 (1977)), U.S.Code Cong. & Admin. News 1978, p. 5787. The Supreme Court in Segal dealt with" }, { "docid": "4774768", "title": "", "text": "of the tax year, did their right to the refunds become certain. The trustees contend that in spite of the contingent nature of the refunds at the time of the petition, the refunds are property of the estate to the extent that the refunds are attributable to excessive withholding from January 1, 1981, to the respective dates of the petitions. Thus, the trustees contend that they are entitled to a pro-rata share of the refunds. 11 U.S.C. § 541(a) states that the commencement of a case under § 301 (voluntary petitions) creates an estate and that such estate is comprised of all “legal or equitable interests of the debtor in property as of the commencement of the case.’’ The legislative history notes that this section encompasses more property than its predecessor, § 70a(5) of the Bankruptcy Act; that the right to a tax refund is property of the estate; and that the holding of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966) remains viable under the Code. H.Rep.No.595, 95th Cong., 2d Sess. 367; S.Rep.No.989, 95th Cong., 2d Sess. 82; U.S.Code Cong. & Admin.News 5787, 5868, 5963, 6323 (1978). In Segal, supra, the bankrupts filed their petition in 1961. They experienced business losses in 1961, which when offset against business income for 1959 and 1960, resulted in a loss carryback refund for the 1961 tax year. There the bankrupts raised an argument identical to the debtor’s argument herein. They argued that there was no right to file or receive a refund prior to the close of the 1961 tax year and thus, the refund was not property of the estate at the time of their petition. The referee denied the bankrupts’ application for turnover and the District Court and Circuit Court of Appeals for the Fifth Circuit affirmed. The Supreme Court granted certiorari to resolve a conflict between the Fifth Circuit ruling and rulings of the First and Third Circuits. See Fournier v. Rosenblum, 318 F.2d 525 (1st Cir. 1963) and In re Sussman, 289 F.2d 76 (3rd Cir. 1961) where the courts held that a." }, { "docid": "19105143", "title": "", "text": "a “proper” request is one that, first, meets the filing requirements of I.R.C. § 7422(a), which provides, in relevant part, that “[n]o suit or proceeding shall be maintained in any court” for a tax refund “until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law [and regulations] in that regard.” Additionally, the I.R.C. establishes that a claim for an income tax refund must be filed within three years from the time the return was filed or two years from the time the tax was paid, whichever expires later. See I.R .C. § 6511(a). The Panel observed that although there is no issue of subject matter jurisdiction with respect to the tax year stated in the proof of claim, the law is “less clear” where the debtor seeks determination of tax liability for years other than that stated in the proof of claim. See In re Kearns, 219 B.R. 823, 826 (8th Cir.BAP 1998); 11 U.S.C. § 106(b). Nonetheless, it ruled that absent the filing of a refund claim, there can be no subject matter jurisdiction over disputed, post-bankruptcy tax years. See id. at 828. While this is a plausible resolution of the issue, we cannot share an interpretation of the Bankruptcy Code that precludes a debtor from having the benefit of carrying back deductions that are intimately related to the adjudged tax liability. In our view, the bankruptcy court correctly recognized the applicability in this case of a corollary to the rule that embezzled funds constitute income to the embezzler: “[T]o the extent that the victim recovers back the misappropriated funds, there is of course a reduction in the embezzler’s income.” James v. United States, 366 U.S. 213, 220, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961) (quotation omitted). We do not read § 505 to preclude determination of how that reduction affects the debtor’s tax liability. See United States v. Wells, 519 U.S. 482, 495, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (“[Courts] presume that Congress expects its statutes to be read in conformity with [the Supreme] Court’s precedents.”). Thus," }, { "docid": "3416067", "title": "", "text": "refunds as a matter of law and ordered Chapman to turn over the amounts of the refund checks to the trustee. The court also held that Chapman’s breach of fiduciary duty counterclaim was barred by the bankruptcy court’s prior unappealed ruling that the trustee had not acted improperly in executing his duties. Chapmen now appeals from both district court rulings. II A. Chapman advances two principal contentions challenging the district court’s turnover order. He first asserts that since the IRS has already seized property of greater value than the amount of the refunds, enforcement of the turnover order would require him to pay the same debt twice. Chapman also contends that the turnover order offends the policies underlying the Bankruptcy Code because it requires him to remit post-petition income. There is no merit to either contention. Chapman’s income-tax refunds constituted “property” of the bankruptcy estate, title to which vested in the estate upon the filing of Chapman’s Chapter 7 petition. Kokoszka v. Belford, 417 U.S. 642, 645-48, 94 S.Ct. 2431, 2433-35, 41 L.Ed.2d 374 (1974); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); 11 U.S.C. § 541; cf. Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). His arguments that the turnover order requires him to pay the same debt twice and that it frustrates the policies of the Bankruptcy Code are specious. The income-tax refunds clearly were not post-petition income. Chapman knew that they were estate property when he received them, but nevertheless appro priated them for his own use. Section 521 of the Bankruptcy Code imposes a duty on debtors both to cooperate with the trustee and to surrender to the trustee all property of the estate. 11 U.S.C. § 521(3), (4). Chapman’s actions in refusing to surrender his tax refunds clearly violated Section 521 and were in direct transgression of the bankruptcy court’s earlier order. The district court correctly held that the refunds were subject to immediate turnover. B. In his appeal from the district court’s dismissal of his counterclaim for breach of fiduciary duty, Chapman contends that the trial court improperly" }, { "docid": "7517313", "title": "", "text": "the $400 child tax credit, the debtor was entitled to a $358 tax refund. Additionally, due to the debtor’s low income, single status, and minor dependent, the debtor qualified for $1,789 in earned income credit. Her total 1998 tax refund, including the earned income credit, was $2,147. Debtor asserted that the tax refund, including the earned income credit was not property of the estate due to the filing of the petition before the end of the calendar year. The debtor alternatively claimed her earned and unpaid wages, including earned income credit, exempt under 15 U.S.C. § 1673 to the extent of 75%. Debt- or also claimed the same as exempt under Wyo. Stat. Ann. § 1 — 15—408(b) (Michie 1997) up to 75%, and 100% exempt under Wyo. Stat. Ann. § 42-2-113 (Michie 1997). The trustee objected to the debtor’s claimed exemption. The bankruptcy court denied debtor’s claims, holding that the tax refund and earned income credit were property of the estate and were not exempt under any of the statutes listed. This appeal followed. IY. Discussion The threshold issue is whether debtor’s income tax refund, including the earned income credit, is property of the estate under 11 U.S.C. § 541(a)(1). The United States Supreme Court and the Tenth Circuit have held that 1) money received through tax refunds is property of the estate, and 2) that money received through earned income credits is classified as overpayments to be refunded and is also property of the estate. In Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), the Court held that a debtor’s claim for loss-carryback refunds constituted “property” under § 70a(5) of the Bankruptcy Act, the predecessor of § 541. The Court stated, “the term ‘property’ has been construed most generously and an interest is not outside its reach because it is novel or contingent or because enjoyment must be postponed.” Id. at 379, 86 S.Ct. 511. Ultimately, the Court held that the refund was property of the estate since it was “sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupts’" }, { "docid": "18535142", "title": "", "text": "of the Bankruptcy Code. In re Marvel, 372 B.R. 425, 430 (Bankr.N.D.Ind.2007) (citing Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)). As discussed below, it is well established bankruptcy law that the portion of the Refund allocable to the pre-petition portion of the tax year becomes property of the estate while the portion of the Refund allocable to the post-petition portion of the tax year is property of the Debtor. The method of allocation, however, is the subject of some dispute. To answer the third question, the Court must look to state law to determine the extent of the Debtor’s interest in the pre-petition portion of the joint Refund as of the commencement of the case. Id.; see also In re Marciano, 372 B.R. 211, 214 (Bankr.S.D.N.Y.2007) (applying state law to determine extent of debtor’s interests in the pre-petition portion of a joint tax refund). A. IS ANY PORTION OF THE REFUND PROPERTY OF THE ESTATE? Although cases on this issue are scant in the First Circuit, it is without question that the pre-petition portion of the Debtor’s Refund is property of the bankruptcy estate. Section 541 of the Bankruptcy Code makes “all legal or equitable interests of the debtor in property as of the commencement of the case” property of the bankruptcy estate. 11 U.S.C. § 541(a). The starting point for an analysis of whether a tax refund becomes property of the estate is the U.S. Supreme Court’s decision in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966) (“Segal”), which has been cited with approval by the bankruptcy courts in this district when dealing with contingent or inchoate claims. See In re Tomaiolo, 205 B.R. 10, 14 (Bankr.D.Mass.1997); In re Riccitelli 320 B.R. 483, 489 (Bankr.D.Mass.2005) (both applying Segal to determine whether a debtor’s malpractice claim was property of the estate). The Court in Segal indicated that one of the primary purposes of the Bankruptcy Act was “to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his" }, { "docid": "18883661", "title": "", "text": "when the debtor’s right to a refund did not arise until eight months after the filing of his bankruptcy petition. 30 B.R. at 813. It has been argued that where a tax refund relates to a year which began pre-petition and ended post-petition, there is no mutuality between pre-petition tax debts and the tax refund because the refund does not arise or vest until after the petition is filed. When bankruptcy petitions are filed in mid-year, the debtors may not even file a tax return until the year’s end. The court in which these arguments were made, however, rejected them. In re Wilson, 29 B.R. 54 (Bkrtcy.W.D.Ark.1982). The court found that: While the debtors are correct in maintaining that at the time of the filing of the petition herein there was no feasible method of determining the extent (or even the certainty) of the income tax refund to which they were entitled, and that in any event no return could even have been filed (let alone a refund paid) prior to January 1, 1981, the insinuation that because of these facts this indebtedness was somehow not “property of the estate” seems to fly in the face not only of the spirit, but indeed, of the very wording of Section 541. Given the fact that the, albeit inchoate, right to a tax refund was “property of the estate” at the time of the filing of the debtors’ petition herein, it would be anomalous to now hold that it concurrently lacked sufficient specificity and mutuality to permit an offset by the United States under 11 U.S.C. Section 553. The court went on to hold that the IRS could offset a pro-rata portion of the tax refund. The Hammett holding cited above was questioned by the district court on appeal. See In re Hammett, 28 B.R. 1012 (D.C.Ed. Pa.1983). The district court noted the argument that the right to a refund did not arise until after the filing of the petition but said that under the doctrine of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), the refund" }, { "docid": "18017758", "title": "", "text": "lead to a post-petition ‘redressable harm,’ the cause of action is ‘sufficiently rooted in the debtor’s pre-petition past....’” The district court affirmed and Witko now appeals to this Court. II.JURISDICTION Witko’s appeal is timely and this Court has jurisdiction. 28 U.S.C. § 158(d). III.STANDARD OF REVIEW This Court reviews de novo the question of law whether a debtor’s interest is property of the bankruptcy estate. Bell-Tel Fed. Credit Union v. Kalter (In re Kalter), 292 F.3d 1350, 1352 (11th Cir.2002). IV.ANALYSIS Pre-petition causes of action are part of the bankruptcy estate and post-petition causes of action are not. Specifically, the debtor’s filing of a petition with the bankruptcy court commences a voluntary bankruptcy case. 11 U.S.C. § 301. The commencement of a voluntary bankruptcy case creates an estate generally consisting of the “legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Although the estate is construed broadly, United States v. Whiting Pools, Inc., 462 U.S. 198, 205, 103 S.Ct. 2309, 2313, 76 L.Ed.2d 515 (1983), Congress expressly cautioned that the Bankruptcy Code “is not intended to expand the debtor’s rights against others more than they exist at the commencement of the case.... [The trustee] could take no greater rights than the debtor himself had.” S.Rep. No. 95-989, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5868; H.R.Rep. No. 95-595, at 367-68 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6323. In Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), for example, the Supreme Court concluded that the debtor’s loss-carryback tax refund claims were property of the estate because they were “sufficiently rooted in the pre-bank-ruptcy past.” Id. at 380, 86 S.Ct. at 515. Although the Segal debtor could not claim the refunds until the tax year closed, which was post-petition, the predicates for receiving the refunds (payment of taxes in prior years and a net operating loss) occurred pre-petition. Id. The debtor had more than a mere hope that his losses might generate revenue in the future; he “possessed an existing interest at the time of" }, { "docid": "12398582", "title": "", "text": "MEMORANDUM OF OPINION AND ORDER RANDOLPH BAXTER, Bankruptcy Judge. The matter before the Court is a motion of the Trustee for an order directing the Debtors to turnover certain funds pursuant to 11 U.S.C. §§ 541 and 542. A hearing was held, with due notice having been made upon all parties entitled thereto. Pursuant to Rule 7052 of the Bankruptcy Rules, the following constitutes the findings of this Court: I This is a core proceeding pursuant to provisions of 28 U.S.C. § 157(b)(2)(E), wherein the Trustee seeks the turnover of $3,195.16 from a tax refund received by the Debtors postpetition. The facts are generally undisputed and reveal that the Debtors sought relief under Chapter 7 on November 18, 1986. On December 17, 1986, the Debtors were examined, and the Trustee’s report of no distribution was filed. The Debtors were issued their discharge on February 20, 1987, and, on April 7, 1987, their estate was closed. Subsequently, on April 14, 1987, the Debtors received a federal income tax refund of $4,464.00, in addition to a state income tax refund in an amount of $75.96. On April 27, 1987, the Debtors provided the Trustee with copies of their 1986 tax returns. Upon the Trustee’s motion, the case was reopened on May 28, 1987, and the instant motion ensued. II. The contentions of the parties hereto, which are several in number, have been duly considered by the Court. The record in its entirety has been reviewed, in addition to the Court having heard the respective arguments of counsel. The law is well established that income tax refunds constitute property of a bankruptcy estate, title to which vests in the estate upon the filing of the debtor’s Chapter 7 petition. Turshen v. Chapman, 823 F.2d 836 (4th Cir.1987); Kokoszka v. Belford, 417 U.S. 642, 645-48, 94 S.Ct. 2431, 2433-35, 41 L.Ed.2d 374 (1974); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); cf., Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Only the portion of the refund which is attributable to prepetition withholding is properly included in the estate," }, { "docid": "1151425", "title": "", "text": "MEMORANDUM OF DECISION ALFRED C. HAGAN, Chief Judge. The chapter 7 trustee objects to the debtors’ claimed exemption of an earned income tax credit. The debtors’ chapter 7 petition and schedules, filed on December 20, 1991, did not claim the exemption. On March 2,1992 debtors filed an amended Schedule C, “Property Claimed as Exempt” claiming the tax credit in the amount of $1,000.00. The credit arises in the form of, and as part of, a 1991 income tax refund. The trustee contends the amendment was not timely filed under the provisions of F.R.B.P. 1007(h). This rule requires the supplemental schedule be filed “... ten days after the information comes to the debtor’s knowledge ... ”. The debtors’ claim the earned income tax credit portion of the refund is not property of the estate; therefore the provisions of F.R.B.P. 1007(h) are not applicable since, if not property of the chapter 7 estate, the credit belongs to the debtors and there is no need to claim the property as exempt. The United States Supreme Court held in Segal v. Rochelle a company’s right to a loss-carry back refund was property of the bankruptcy estate. The Court found the refund to be “sufficiently rooted in the pre-bankruptcy past” to be regarded as property of the estate. The Court also relied on Segal in its holding in Kokoszka v. Bel-ford an income tax refund is property that passes to the trustee upon the filing of a petition. Both Segal and Kokoszka were decided under the prior Bankruptcy Act. The legislative history of § 541 of the current code states “The result of Segal v. Rochelle, 382 U.S. 375 (1966) [86 S.Ct. 511, 15 L.Ed.2d 428], is followed, and the right to a refund is property of the estate. ” Segal and Kokoszka have been followed in cases under the bankruptcy code. In support of their contention the earned income tax credit portion of the tax refund is not property of the estate, debtors cite In re Searles, 445 F.Supp. 749 (D.Conn.1978), In re Rash, 22 B.R. 323 (Bankr.D.Kan.1982) and In re Hurles, 31 B.R." }, { "docid": "18591346", "title": "", "text": "Supreme Court in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), held that a business generated loss carryback tax refund was property within the meaning of § 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5). The Court reasoned that the refund was sufficiently rooted to the pre-bankruptcy past that it should be regarded as estate property. In Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), the Court held that a wage earner’s tax refund was property within the meaning of § 70(a)(5). The Court further found that the refund was neither wages nor the equivalent of wages and that depriving the bankrupt of the refund would not hinder his fresh start. The Consumer Protection Credit Act dealt with in Kokoszka is similar in wording and design to K.S.A. § 60-2310. Both statutes protect the earnings of individuals from excessive garnishment. The language of neither statute is sufficiently broad to include a tax refund as disposable earnings currently received as a periodic payment from an employer. Though both Segal and Kokoszka were decided prior to the advent of the Code, their holdings were neither circumvented nor obviated by it. That pronouncement as to what is property under § 70(a) of the Bankruptcy Act can only be enlarged by the expanded language found in § 541 of the Code. As stated in the legislative history of § 541, the result of Segal is followed and the right to a refund is property of the estate. H.R. 95 — 595, supra. The Court therefore concludes that the bankruptcy estate in the Hiatt case is entitled to 321/365 of the debtor’s refund. The remaining portion of the refund is the debtors. The bankruptcy estate in the Koch case is entitled to 364/365 of the debtors’ refund. The remaining portion of the refund is the debtors. See In Re DeVoe, 5 B.R. 618 (Bkrtcy.S.D.Ohio, 1980). The Court further concludes that the debtors’ objections to trustees’ claims should be overruled. IT IS SO ORDERED." }, { "docid": "18591345", "title": "", "text": "of the refunds have been noted. The trustees, in February, 1981 at hearings held pursuant to 11 U.S.C. § 341, demanded that the debtors turn over any refund received for the tax year 1980 to them as part of the bankruptcy estates created by 11 U.S.C. § 541. CONCLUSIONS OF LAW Property of the bankruptcy estate created by commencement of a case under title 11 of the United States Code is defined by § 541. It consists of all legal and equitable interests of the debtor. The scope of the definition is broad and includes all types of property and rights to property the debt- or possesses with few statutorily noted exceptions. At the time an order for relief is filed, virtually all of the debtor’s property becomes property of the bankruptcy estate. In order for the post filing debtor to accumulate property, it must be acquired from the estate through the exemption process or from other sources. House Report 95-595, 95th Cong., 1st Sess., pg. 367, U.S.Code Cong. & Admin.News 1978, p. 5787. The Supreme Court in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), held that a business generated loss carryback tax refund was property within the meaning of § 70(a)(5) of the Bankruptcy Act, 11 U.S.C. § 110(a)(5). The Court reasoned that the refund was sufficiently rooted to the pre-bankruptcy past that it should be regarded as estate property. In Kokoszka v. Belford, 417 U.S. 642, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974), the Court held that a wage earner’s tax refund was property within the meaning of § 70(a)(5). The Court further found that the refund was neither wages nor the equivalent of wages and that depriving the bankrupt of the refund would not hinder his fresh start. The Consumer Protection Credit Act dealt with in Kokoszka is similar in wording and design to K.S.A. § 60-2310. Both statutes protect the earnings of individuals from excessive garnishment. The language of neither statute is sufficiently broad to include a tax refund as disposable earnings currently received as a periodic payment from an" }, { "docid": "19105141", "title": "", "text": "the bankruptcy court lacked jurisdiction over tax years 1990 through 1994, vacated the bankruptcy court’s opinion, and remanded the matter with instructions to allow the IRS claim in its entirety. The Panel did not address the issue of the theft-loss deduction. On appeal, Kearns argues that the bankruptcy court correctly determined that offsets were permissible both for the deductible amounts of Kearns’ restitution payments and the theft-loss deductions and properly calculated the amounts of those offsets. The IRS repeats its contention that the bankruptcy court lacked subject matter jurisdiction to determine tax liability in any year other than the 1989 tax year, the year for which a proof of claim was filed. In the alternative, the IRS asserts the Kearns failed to submit a claim for refund within the statutory period. II. A. Subject Matter Jurisdiction The United States is immune from suit except where Congress has waived that immunity. See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). “[T]he terms of [the United States’] consent to be sued in any court defines that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Section 505 of the Bankruptcy Code addresses the authority of bankruptcy courts to determine tax liability. Section 505(a)(1) confers on bankruptcy courts jurisdiction to determine “the amount or legality of any tax ... whether -or not previously assessed, ... paid, ... or ... contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction.” 11 U.S.C. § 505(a) (1998). Excepted from this broad grant of jurisdiction is the authority to determine: any right of the estate to a tax refund, before the earlier of — (i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; or (ii) a determination by such governmental unit of such request. 11 U.S.C. § 505(a)(2)(B) (1998). The IRS notes that the language, “properly requests such refund,” incorporates provisions from the Internal Revenue Code (I.R.C.) governing application for income tax refunds. Specifically," }, { "docid": "13712358", "title": "", "text": "argument and held that the portion of the refund attributable to the pre-petition portion was indeed part of the bankruptcy estate. 102 B.R. 250. The facts pertaining to the Robersons claims are similar. The Robersons filed their joint Chapter 7 petition on October 2, 1987. The Robersons were discharged in bankruptcy on February 12, 1988 as another no-asset estate. The trustee reopened their case after she learned that they had received an $807.57 refund, part of which was attributable to pre-petition earnings. The Robersons made the same arguments as were made by the Barowskys, with similar results. DISCUSSION The Supreme Court has long since decided that an income tax refund can be property of a bankruptcy estate. Kokoszka v. Belford, 417 U.S. 642, 648, 94 S.Ct. 2431, 2435, 41 L.Ed.2d 374 (1974). See also Segal v. Rochelle, 382 U.S. 375, 381, 86 S.Ct. 511, 515, 15 L.Ed.2d 428 (1966) (holding that a loss-carryback refund constitutes property of the estate). In Kokoszka, the debtor filed for bankruptcy on January 5, 1972. In February of 1972, the debtor filed his income tax return for the 1971 calendar year. Several weeks later, he received a refund check from the IRS. The trustee requested the bankruptcy court to order the debtor to tender the refund check to the trustee. The bankruptcy court agreed and entered the order. The debtor complied with the order and then petitioned for review with the district court. The district court affirmed the bankruptcy court’s ruling and was affirmed on appeal by both the United States Court of Appeals for the Second Circuit and the United States Supreme Court. Kokoszka, 417 U.S. at 644-45, 94 S.Ct. at 2433. In that case, the Supreme Court had to determine whether the refund was “property” within the meaning of section 70(a)(5) of the Bankruptcy Act. The Court held that the refund was “ ‘sufficiently rooted in the prebankruptcy past and so little entangled with the bankrupt’s ability to make an unencumbered fresh start that it should be regarded as “property”_’” Kokoszka, 417 U.S. at 647, 94 S.Ct. at 2434 (quoting Segal, 382 U.S." }, { "docid": "4774767", "title": "", "text": "federal income tax return. Their estate was closed on February 9, 1982. Thereafter, the trustee received a refund check for $575.00. On April 21, 1982, they filed an application for nunc pro tunc order of turnover. The Cofields filed a Chapter 7 petition on July 6,1981. They were discharged on January 22, 1982. Sometime thereafter they filed their 1981 federal and state income tax returns. On February 8, 1982, their estate was closed. Thereafter, the trustee received a federal refund check for $480.00 and a state refund check for $108.00. On March 20, 1982, the debtors filed a motion for turnover. ISSUE WHETHER INCOME TAX REFUNDS ATTRIBUTABLE TO EXCESSIVE WITHHOLDINGS IN THE SAME YEAR IN WHICH THE BANKRUPTCY PETITION WAS FILED AND RECEIVED IN THE FOLLOWING YEAR ARE PROPERTY OF THE ESTATE PURSUANT TO 11 U.S.C. § 541. CONCLUSIONS OF LAW The debtors contend that the refunds are not property of the estate because at the time of their petitions, they had no vested right to the refunds. Not until December 31, 1981, the close of the tax year, did their right to the refunds become certain. The trustees contend that in spite of the contingent nature of the refunds at the time of the petition, the refunds are property of the estate to the extent that the refunds are attributable to excessive withholding from January 1, 1981, to the respective dates of the petitions. Thus, the trustees contend that they are entitled to a pro-rata share of the refunds. 11 U.S.C. § 541(a) states that the commencement of a case under § 301 (voluntary petitions) creates an estate and that such estate is comprised of all “legal or equitable interests of the debtor in property as of the commencement of the case.’’ The legislative history notes that this section encompasses more property than its predecessor, § 70a(5) of the Bankruptcy Act; that the right to a tax refund is property of the estate; and that the holding of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966) remains viable under the Code. H.Rep.No.595, 95th Cong.," }, { "docid": "1151426", "title": "", "text": "Segal v. Rochelle a company’s right to a loss-carry back refund was property of the bankruptcy estate. The Court found the refund to be “sufficiently rooted in the pre-bankruptcy past” to be regarded as property of the estate. The Court also relied on Segal in its holding in Kokoszka v. Bel-ford an income tax refund is property that passes to the trustee upon the filing of a petition. Both Segal and Kokoszka were decided under the prior Bankruptcy Act. The legislative history of § 541 of the current code states “The result of Segal v. Rochelle, 382 U.S. 375 (1966) [86 S.Ct. 511, 15 L.Ed.2d 428], is followed, and the right to a refund is property of the estate. ” Segal and Kokoszka have been followed in cases under the bankruptcy code. In support of their contention the earned income tax credit portion of the tax refund is not property of the estate, debtors cite In re Searles, 445 F.Supp. 749 (D.Conn.1978), In re Rash, 22 B.R. 323 (Bankr.D.Kan.1982) and In re Hurles, 31 B.R. 179 (Bankr.Ohio 1983). In re Searles was decided under the Bankruptcy Act. The court reasoned an earned income tax credit was not property of the estate since, \"... what constitutes ‘property’ in the estate of a bankrupt must be limited by the purpose of the Bankrupt cy Act ...”. The Court held the earned income tax credit was not property of the estate. The opinion states: In view of the dual purposes of the Bankruptcy Act to pay creditors and to afford the bankrupt a fresh state, Kok-oszka v. Belford, 417 U.S. 642, 646 [94 S.Ct. 2431, 2434, 41 L.Ed.2d 374] (1974) reh’g denied, 419 U.S. 886 [95 S.Ct. 160, 42 L.Ed.2d 131] (1974), an asset in the hands of the bankrupt can be taken by the Trustee to pay creditors under § 70a(5) if “It is sufficiently rooted in the pre-bankruptcy past and [not sufficiently] entangled with the bankrupt’s ability to make an unencumbered fresh start ...” Segal v. Rochelle, supra, 382 U.S. at 380, 86 S.Ct. at 515. The Bankruptcy Court cases of" }, { "docid": "18568032", "title": "", "text": "property wages withheld by employers and/or income tax refunds. Since the initiation of the instant proceedings, defendants Nichols and Manning have amended their claim of exemptions on the B-4 schedules. These amendments are of no direct import in the consideration of this litigation. On November 29, 1979 the trustee filed complaints to deny exemptions and for judgment in each of these cases. In his complaint, the trustee “objects to the allowance of exemption for wages and income tax refunds for the reason that the same are not personal property as contemplated by the statute and not exempt under [11] U.S.C.A. 522(d)(5) and for the further reason that the same is not specific in amount and exceeds the statutory amount allowable.” Tr. Complaint ¶ II. In each case, the debtors have elected the Federal bankruptcy exemptions, as found in 11 U.S.C. § 522(d). The debtors in these cases either owned no real estate which could be claimed as exempt, or the equity in the homestead was less than $7,500.00. By their claim of exempt property on the B-4 schedule, each debtor is attempting to apply any unused portion of the $7,500.00 to other property under § 522(d)(5). Under prior law, the Bankruptcy Act of 1898, as amended, the question presented to the court today would be easily resolved. Section 6 of the Act looked to the law of the state where the bankrupt was domiciled. Under Michigan law there is no exemption for wage holdbacks or income tax refunds. See Mich.Comp.L.Ann. § 600.6023 (1968); Mich.Stat.Ann. § 27A.6023 (1977). Consequently, wage holdbacks and income tax refunds, under the former Act, would have been property of the bankruptcy estate not subject to exemptions. See Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966); Fournier v. Rosenblum, 318 F.2d 525 (1st Cir. 1963). The instant controversy has been submitted to the court due, in part at least, to the radical changes which the debtors submit were worked by virtue of the promulgation of P.L. 95-598, which enacted a new title 11 of the United States Code, commonly referred to as" }, { "docid": "12398583", "title": "", "text": "income tax refund in an amount of $75.96. On April 27, 1987, the Debtors provided the Trustee with copies of their 1986 tax returns. Upon the Trustee’s motion, the case was reopened on May 28, 1987, and the instant motion ensued. II. The contentions of the parties hereto, which are several in number, have been duly considered by the Court. The record in its entirety has been reviewed, in addition to the Court having heard the respective arguments of counsel. The law is well established that income tax refunds constitute property of a bankruptcy estate, title to which vests in the estate upon the filing of the debtor’s Chapter 7 petition. Turshen v. Chapman, 823 F.2d 836 (4th Cir.1987); Kokoszka v. Belford, 417 U.S. 642, 645-48, 94 S.Ct. 2431, 2433-35, 41 L.Ed.2d 374 (1974); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); cf., Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966). Only the portion of the refund which is attributable to prepetition withholding is properly included in the estate, In re Rash, 22 B.R. 323, 9 B.C.D. 411 (D.Kan.1982); and postpetition property inures to the debtor’s fresh start. See, Segal, supra. Where appropriate, a pro-rationing of the refund is proper. In re Devoe, 5 B.R. 618, 620 (Bankr.S.D.Ohio, 1980); In re Doan, supra at 832. Herein, the Debtors contend, inter alia, that the assets of the reopened estate are only those portions of the tax refund remaining in the Debtors’ possession as of May 28, 1987. The Trustee contends that all of the tax refund which can be attributed to the Debtors’ prepetition earnings is property of the estate, notwithstanding what amount may or may not presently be in the Debtors’ possession. Further, the Debtors contend that both are entitled to claim exemptions against their tax refund, even though the tax return was filed only by Lester Smith as a married person filing individually. It is uncontested, and the Debtors represent, that of the total tax refund received the Debtors presently have only $1,586.00 remaining in their possession. It was not alleged, and the" }, { "docid": "19105142", "title": "", "text": "sued in any court defines that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Section 505 of the Bankruptcy Code addresses the authority of bankruptcy courts to determine tax liability. Section 505(a)(1) confers on bankruptcy courts jurisdiction to determine “the amount or legality of any tax ... whether -or not previously assessed, ... paid, ... or ... contested before and adjudicated by a judicial or administrative tribunal of competent jurisdiction.” 11 U.S.C. § 505(a) (1998). Excepted from this broad grant of jurisdiction is the authority to determine: any right of the estate to a tax refund, before the earlier of — (i) 120 days after the trustee properly requests such refund from the governmental unit from which such refund is claimed; or (ii) a determination by such governmental unit of such request. 11 U.S.C. § 505(a)(2)(B) (1998). The IRS notes that the language, “properly requests such refund,” incorporates provisions from the Internal Revenue Code (I.R.C.) governing application for income tax refunds. Specifically, a “proper” request is one that, first, meets the filing requirements of I.R.C. § 7422(a), which provides, in relevant part, that “[n]o suit or proceeding shall be maintained in any court” for a tax refund “until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law [and regulations] in that regard.” Additionally, the I.R.C. establishes that a claim for an income tax refund must be filed within three years from the time the return was filed or two years from the time the tax was paid, whichever expires later. See I.R .C. § 6511(a). The Panel observed that although there is no issue of subject matter jurisdiction with respect to the tax year stated in the proof of claim, the law is “less clear” where the debtor seeks determination of tax liability for years other than that stated in the proof of claim. See In re Kearns, 219 B.R. 823, 826 (8th Cir.BAP 1998); 11 U.S.C. § 106(b). Nonetheless, it ruled that absent the filing of" } ]

[ { "docid": "19105185", "title": "", "text": "respond. (Resp., Ex. 1.) Defendant’s alleged failure to reinvestigate a dispute made in “the fall of 1997” or after June 23, 1996 would be within two years of the date Plaintiffs brought this action. Thus, the court finds that Plaintiffs have presented evidence of communications occurring within the two-year statute of limitations. Accordingly, the court finds that Plaintiffs have raised a factual dispute as to whether Mr. Barron “notifiefd]” Defendant “directly” of his dispute and whether Defendant failed to reinvestigate. 15 U.S.C. § 1681i(a)(l)(A); see also Whelan v. Trans Union Credit Reporting Agency, 862 F.Supp. 824, 833 (E.D.N.Y.1994) (noting that “the FCRA requires that the information be conveyed by the consumer directly to the credit reporting agency”); Wiggins v. Equifax Services, Inc., 848 F.Supp. 213, 220 (D.D.C.1993) (In denying the consumer reporting agency’s motion for summary judgment, the court noted that a disputed fact existed concerning whether the consumer complained directly to the consumer reporting agency, “a requirement for liability under § 1681i(a).”). Thus, summary judgment is due to be denied on Plaintiffs’ § 1681i claims pertaining to alleged liabilities arising after June 23,1996. C. Defendant’s Verification of the Disputed Sears Account Defendant next asserts that Plaintiffs cannot sustain a claim under 15 U.S.C. § 1681e(b) based on the disputed Sears Account because Defendant verified that the Sears Account was “accurate.” (Mem. at 2.) The court, however, finds that summary judgment is not appropriate as to this claim. To establish a “prima facie violation” under 15 U.S.C. § 1681e(b), a consumer must present evidence tending to show that a credit reporting agency prepared a report containing “inaccurate” information. If he [or she] fails to satisfy this initial burden, the consumer, as a matter of law, has not established a violation ..., and a court need not inquire further as to the reasonableness of the procedures adopted by the credit reporting agency. The Act, however, does not make reporting agencies strictly liable for all inaccuracies. The agency can escape liability if it establishes that an inaccurate report was generated by following reasonable procedures, which will be a jury question in the" } ]

[ { "docid": "495284", "title": "", "text": "where defendant “cursorily considered all disputes using a semi-automated process, ignored material distinctions m records, and declined to consider any information beyond that provided in the account summary” (emphasis added)). The court therefore denies defendants’ motion for summary judgment as to willfulness. A jury will first have to decide whether their reinvestigations of the BOA HELOC and CMI account were unreasonable, and, if so, whether they were undertaken in “reckless disregard” of Grigor-yan’s rights under the FCRA and CCRAA. III. CONCLUSION For the reasons stated, the court grants defendants’ motion for summary judgment on Grigoryan’s § 1681e(b) and § 1785.14(b) claims. The court also grants summary judgment 'in favor of Trans Union on Grigoryan’s § 1681i and § 1785.16 claims to the extent they are based on allegations that Trans Union failed reasonably to reinvestigate the Sequoia account. It denies the motion for summary judgment on Grigoryan’s § 1681i and § 1785.16 claims as to all defendants to the extent premised on unreasonable reinvestigation of Grigoryan’s BOA HELOC account, and the CMI account. Because business-related damages are not recoverable under the FCRA and CCRAA, and because Grigoryan proffers no 'evidence that defendants’ alleged violations proximately caused any business damages in any event, the court grants summary judgment in defendants’ favor on Grigoryan’s prayer for damages sustained in connection with his real estate investment business, as well as his purported inability to invest in a Dickies Barbecue franchise. The court also grants summary judgment in defendants’ favor on Grigor-yan’s prayer for emotional distress damages to the extent such damages are premised on the denial or suspension of credit and/or the corresponding impact on his business because he adduced no evidence of credit denials or suspensions subsequent to November 29 and 30, 2011 and December 3, 2011, the dates on which his viable FCRA and CCRRA claims accrued. The court denies defendants’ motion for summary judgment on Grigoryan’s prayer for emotional distress damages arising from his efforts to correct defendants’ violations, however. Finally, the court denies defendants’ motion for summary judgment on the issue of the willfulness of their purported § 1681i" }, { "docid": "6997928", "title": "", "text": "2007 U.S. Dist. LEXIS 31231, *7-8 (C.D.Cal.2007); King v. Asset Acceptance, LLC, 452 F.Supp.2d 1272, 1279 (D.Ga.2006). Indeed, the District of New Mexico found that: the authorities cited in favor of the “reckless disregard” standard provide a more cogent and balanced approach to the definition of “willfulness” in th[e FCRA] context. Under this approach, the term “willfully” entails a “conscious disregard” of the law, which means “ ‘either knowing that policy ... to be in contravention of the rights possessed by consumers pursuant to the FCRA or in reckless disregard of whether the policy ... contravened those rights.’ ” Reynolds, 435 F.3d at 1098 (quoting Cushman, 115 F.3d at 227). Allowing FCRA plaintiffs to prove willfulness by showing a defendant’s “reckless disregard” of the law’s requirements is more appropriate in this context because it accords with Supreme Court precedent distinguishing civil liability from criminal liability, and because it best furthers the purposes and objectives of the FCRA. See id. at 1097-99. In contrast, requiring FCRA plaintiffs to prove the defendant actually knew that it was violating the law would “create perverse incentives” for credit reporting agencies to pursue a policy of deliberate ignorance of the law in order to avoid liability for punitive damages. Apodaca, 417 F.Supp.2d at 1229 (emphasis supplied). Here, Trans Union knowingly and intentionally elected to rely exclusively on automated procedures in attempting to satisfy its Section 1681i obligations. In light of numerous court decisions finding such automated procedures unreasonable where, as here, a consumer reporting agency was on notice of the possible inaccuracy of the automated responses the creditor would provide, a jury could find that Trans Union did so in reckless disregard of the possibility that it would thereby violate of the law. Under the Reynolds standard, there is therefore a question of fact as to whether Trans Union acted willfully. Moreover, the same conclusion would apply with equal force under an “actual knowledge” standard of willfulness. Reporting agencies are required to “provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from" }, { "docid": "4846789", "title": "", "text": "that no reasonable jury could find that the errors in plaintiffs criminal background report did not result from a willful failure to follow reasonable procedures to assure maximum possible accuracy in preparing the report. See Bradshaw v. BAC Home Loans Servicing, LP, 816 F.Supp.2d 1066, 1076-77 (D.Or.2011) (citation omitted) (“[A] reasonable jury could find that a CRA acted in reckless disregard of its duties by relying [ ] on automated procedures ... when the CRA was on notice of the possible inaccuracy of the automated responses. Therefore, this claim must [] be decided by a jury.”); see also Barron v. Trans Union Corp., 82 F.Supp.2d 1288, 1299 n. 9 (M.D.Ala.2000) (citations omitted) (finding disputed issues of fact on the issue of willfulness entitled plaintiff to present the issue to a jury and noting that the court’s “duty at [the summary judgment stage was] not to weigh the evidence or question its veracity; rather, the court must only eliminate claims upon which no rational jury could find for [p]laintiff.”). In short, the Court finds that disputed issues of fact exist with regard to whether BGC acted with a reckless indifference and therefore willfully violated § 1681e(b), and it is therefore RECOMMENDED that BGC’s motion for summary judgment as to this claim be DENIED. B. § 1681k Claims Plaintiff also asserts a claim pursuant to § 1681k, alleging that BGC negligently and willfully failed to provide him notice that public record information was being reported for employment purposes, or alternatively, that BGC failed to employ strict procedures to ensure that public record information is complete and up to date. [Doc. 1 ¶ 31]. BGC has offered evidence showing that once it completed the criminal background check and sent it to Dart, it generated and mailed a letter to plaintiff, notifying him that public record information was provided to Dart as required by § 1681k, see [Doc. 37 ¶¶ 26-29 & Ex. B]; see also [Doc. 43 at 50-53], and plaintiff even admits he received the letter at his home, see [Doc. 39-2 at 50-51, 74]. In his response in opposition to BGC’s" }, { "docid": "495236", "title": "", "text": "to the furnishers in lieu of or in addition to sending an electronic form for routine verification. It is well settled that exclusive reliance on ACDV procedures does not suffice, as a matter of law, to establish that a “reasonable investigation” took place once a consumer disputes the accuracy of the fur-nisher’s information. See Bradshaw v. BAC Home Loans Servicing, LP, 816 F.Supp.2d 1066, 1073-74 (D.Or.2011) (“Many courts, including this one, have concluded that where a CRA is affirmatively on notice that information received from a creditor may be suspect, it is unreasonable as a matter of law for the agency to simply verify the creditor’s information through the ACDV process without additional investigation”); White v. Trans Union, LLC, 462 F.Supp.2d 1079, 1083 (C.D.Cal.2006) (“TransUnion seeks to deflect responsibility for this inaccuracy to the creditors upon whom it relies for information and falls back on its assertion that ‘a creditor is in a better position than a consumer reporting agency with regard to the ability to detect and correct errors in the reporting of a consumer’s account.’ ... This hardly suffices to establish, as a matter of law, that a ‘reasonable reinvestigation’ amounts to an inquiry that goes only to confirmation of the accuracy of information from its original source”); see also Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997) (“The ‘grave responsibility’ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources”); Apodaca v. Discover Fin. Servs., 417 F.Supp.2d 1220, 1230-31 (D.N.M.2006) (noting that credit reporting agencies may not rely on automated procedures that make only superficial inquiries once the consumer has notified it that information is disputed). Thus, there are triable issues of fact with respect to the reasonableness of Trans Union’s investigations of October 31, 2011 and June 4, 2012; Experian’s investigations of November 4, 2011, April 30, 2012, and June 6, 2012; and Equifax’s investigation of October 30, 2011. The fact that relying solely on ACDV procedures is unreasonable is especially clear where, as was the case with respect to the October 30, 31, and November" }, { "docid": "6997929", "title": "", "text": "violating the law would “create perverse incentives” for credit reporting agencies to pursue a policy of deliberate ignorance of the law in order to avoid liability for punitive damages. Apodaca, 417 F.Supp.2d at 1229 (emphasis supplied). Here, Trans Union knowingly and intentionally elected to rely exclusively on automated procedures in attempting to satisfy its Section 1681i obligations. In light of numerous court decisions finding such automated procedures unreasonable where, as here, a consumer reporting agency was on notice of the possible inaccuracy of the automated responses the creditor would provide, a jury could find that Trans Union did so in reckless disregard of the possibility that it would thereby violate of the law. Under the Reynolds standard, there is therefore a question of fact as to whether Trans Union acted willfully. Moreover, the same conclusion would apply with equal force under an “actual knowledge” standard of willfulness. Reporting agencies are required to “provide to the person who provided the information in dispute all relevant information regarding the dispute that is received by the agency from the consumer,” 15 U.S.C. § 1681i(a)(2)(B), and independently to “review and consider all relevant information submitted by the consumer,” 15 U.S.C. § 1681i(a)(4). Where, as here, a consumer provides relevant documentary evidence in support of his or her dispute, an ACDV system cannot comply with either the information-transmittal requirement or the independent consideration requirement. Even under a more stringent standard than that currently binding on this court, therefore, the evidence in the record would create a question of fact as to whether Trans Union had actual knowledge that its automated procedures would fail to comply with those FCRA requirements triggered by its receipt of relevant documentary evidence. Because under any applicable standard there is a question of fact as to Trans Union’s willfulness, this court recommends that Trans Union’s motion for partial summary judgment be denied both as to Saenz’ Section 1681n claim and as to his entitlement to recovery of punitive damages. CONCLUSION For the reasons set forth above, this court recommends denying defendant Trans Union’s motion for summary judgment (# 43), granting Trans" }, { "docid": "495283", "title": "", "text": "of its reporting through the ACDV process, supports the conclusion as a matter of law that they did not act willfully. Again, the court cannot agree. As noted, whether defendants received payment receipts from Grigoryan, and failed to forward them to the bank as part of their reinvestigation, is disputed. If the jury credits Grigoryan’s testimony that he ■ attached the receipts to his reinvestigation requests, defendants’ failure to forward them to the bank would permit the jury reasonably to conclude that defendants acted in reckless disregard of their § 1681i and § 1785.16 obligations, which require “consider[ation of] all relevant information submitted by the consumer.” See 15 U.S.C. § 1681i(a)(4); see also Cushman, 115 F.3d at 225 (“The ‘grave responsibility’ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources. Therefore, a ‘reinvestigation’ that merely shifts the burden back to the consumer and the credit grantor cannot fulfill the obligations contemplated by the statute”); Fregoso, 2012 WL 4903291 at *10 (concluding that willfulness was a jury question where defendant “cursorily considered all disputes using a semi-automated process, ignored material distinctions m records, and declined to consider any information beyond that provided in the account summary” (emphasis added)). The court therefore denies defendants’ motion for summary judgment as to willfulness. A jury will first have to decide whether their reinvestigations of the BOA HELOC and CMI account were unreasonable, and, if so, whether they were undertaken in “reckless disregard” of Grigor-yan’s rights under the FCRA and CCRAA. III. CONCLUSION For the reasons stated, the court grants defendants’ motion for summary judgment on Grigoryan’s § 1681e(b) and § 1785.14(b) claims. The court also grants summary judgment 'in favor of Trans Union on Grigoryan’s § 1681i and § 1785.16 claims to the extent they are based on allegations that Trans Union failed reasonably to reinvestigate the Sequoia account. It denies the motion for summary judgment on Grigoryan’s § 1681i and § 1785.16 claims as to all defendants to the extent premised on unreasonable reinvestigation of Grigoryan’s BOA HELOC account, and the CMI account. Because business-related" }, { "docid": "495279", "title": "", "text": "Co., 171 Cal.App.3d 681, 689-90, 217 Cal.Rptr. 522 (1985) (“Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.”). The court therefore applies Safe-co’s “reckless disregard” standard to both the FCRA and CCRAA claims. As noted, whether defendants’ exclusive reliance on the ACDV process in connection with reinvestigations of the BOA HELOC and CMI account under § 1681i and § 1785.16 was reasonable is an issue of fact that must be decided by the jury. “If any possible resolution of [this] issue[ ] could support a jury finding that the lack of a reasonable reinvestigation was willful, summary judgment is barred.” Valentine v. First Advantage Saferent, Inc., No. CV 08-142 VAP (OPX), 2009 WL 4349694, *12 (C.D.Cal. Nov. 23, 2009). “Here, [defendants] knowingly and intentionally elected to rely exclusively on automated procedures in attempting to satisfy [their] [§ ] 1681i obligations. In light of numerous court decisions finding such automated procedures unreasonable where, as here, a consumer reporting agency was on notice of the possible inaccuracy of the automated responses the creditor would provide, a jury could find that [defendants] did so in reckless disregard of the possibility that [they] would thereby violate of the law.” Saenz, 621 F.Supp.2d at 1088; Valentine, 2009 WL 4349694 at *13 (“Valen tine has submitted admissible evidence— his declaration — maintaining he sent his original signature to SafeRent. Although the latter disputes this, if a fact-finder found in Valentine’s favor, and further found that SafeRent was in possession of Valentine’s original signature, as he maintains, and that SafeRent nonetheless did not complete a ‘reasonable reinvestigation’ on these grounds, a reasonable jury could find the lack of a reasonable reinvestigation willful”). See also Fregoso v. Wells Fargo Dealer Services, Inc., No. CV 11-10089 SJO (AGRx), 2012 WL 4903291, *10 (C.D.Cal. Oct. 16, 2012) (“Plaintiff has provided sufficient evidence" }, { "docid": "11637152", "title": "", "text": "See Cushman, 115 F.3d at 223, 227 (reversing and remanding a trial court judgment as a matter of law and instructing trial court to consider Plaintiffs FCRA wilfulness claim in light of the reckless disregard standard). This is consistent with a number of Eastern District decisions which, following Cushman, have rejected motions for summary judgment in FCRA willfulness cases finding that the reckless disregard determination should be left for the jury. See Lawrence, 296 F.Supp.2d at 590 (denying summary judgment to CRA for FCRA willfulness claim); Crane, 282 F.Supp.2d at 321 (same); Evantash v. G.E. Capital Mortgage Servs., Inc., No. 02-cv-1188, 2003 WL 22844198, at *8 (E.D.Pa. Nov. 25, 2003) (same). Here, the issue of whether Defendant acted in reckless disregard when investigating Plaintiffs file and violated § 1681i presents a jury question. Plaintiff has provided evidence that, if true, shows that her file continually had inaccurate facts, Plaintiff notified Defendant of the inaecuracies on various occasions, and Defendant repeatedly let the inaccuracies continue for decades. (Pl.’s Resp. at 43.) Plaintiff put Defendant on notice in 2001, 2005, 2007, and 2009 that another consumer’s information was being mixed into her file. Even though Defendant was on notice of the continual problems with Plaintiffs file, Defendant failed to use its “do not merge” procedures to prevent the mixing. Additionally, in March 2009, after being put on notice of various inaccuracies, Defendant only investigated one inaccuracy — the bankruptcy. Moreover, in violation of § 1681i(a)(5)(i), Defendant allowed for the inaccurate bankruptcy, reported in March 2009, to be reinserted onto Plaintiffs file. Given Defendant’s general knowledge of the mixed file problem and Defendant’s failure to act to ensure these problems did not continue, a jury could reasonably find that Defendant acted in reckless disregard and summary judgment should be denied. E. Defendant Erroneously Argues that Plaintiffs Willful § 1681e(b) Claim and Negligent § 1681e(b) Claim Fail as a Matter of Law Section 1681e(b) requires CRAs to follow “reasonable procedures to assure maximum possible accuracy” when preparing consumer reports. Defendant argues that to determine whether Defendant willfully violated this section of the FCRA, the" }, { "docid": "495280", "title": "", "text": "exclusively on automated procedures in attempting to satisfy [their] [§ ] 1681i obligations. In light of numerous court decisions finding such automated procedures unreasonable where, as here, a consumer reporting agency was on notice of the possible inaccuracy of the automated responses the creditor would provide, a jury could find that [defendants] did so in reckless disregard of the possibility that [they] would thereby violate of the law.” Saenz, 621 F.Supp.2d at 1088; Valentine, 2009 WL 4349694 at *13 (“Valen tine has submitted admissible evidence— his declaration — maintaining he sent his original signature to SafeRent. Although the latter disputes this, if a fact-finder found in Valentine’s favor, and further found that SafeRent was in possession of Valentine’s original signature, as he maintains, and that SafeRent nonetheless did not complete a ‘reasonable reinvestigation’ on these grounds, a reasonable jury could find the lack of a reasonable reinvestigation willful”). See also Fregoso v. Wells Fargo Dealer Services, Inc., No. CV 11-10089 SJO (AGRx), 2012 WL 4903291, *10 (C.D.Cal. Oct. 16, 2012) (“Plaintiff has provided sufficient evidence in support of his contention that PCC’s disregard of its FCRA violations was willful (i.e. reckless). As described in more detail above, Plaintiff provides evidence demonstrating that PCC, through its employee Ms. Villavicen-cio, cursorily considered all disputes using a semi-automated process, ignored material distinctions in records, and declined to consider any information beyond that provided in the account summary”); Bradshaw, 816 F.Supp.2d at 1076 (“defendants elected to comply with their FCRA obligations by providing general descriptions of plaintiffs’ dispute through an automated system.... [A] reasonable jury could find that a CRA acted in reckless disregard of its duties by relying exclusively on automated procedures that have been held to be unreasonable by numerous court decisions when the CRA was on notice of the possible inaccuracy of the automated responses”). Defendants disputed this conclusion at the hearing, asserting they were entitled to reach cohclusions based on information obtained from “reliable” furnishers. The court cannot agree. A furnisher’s reliability, as noted, is relevant in assessing whether a credit reporting agency can rely on information furnished, in the" }, { "docid": "23318683", "title": "", "text": "in a credit report is in fact governed by the FCRA. That website goes as far as to mention that the FCRA and the FTC provide consumers with a remedy when an invalid OFAC Alert is on their credit reports. See http://www.treas.gov/offices /enforcement/ofac/faq/answer.shtml# consumed (visited June 17, 2010) (“How Can I Get The OFAC Alert Off My Credit Report? A consumer has the right under the Fair Credit Reporting Act (FCRA), 15 U.S.C. 1681 et seq., to request the removal of incorrect information on his/her credit report. To accomplish this, consumers should contact the credit reporting agency or bureau that issued the credit report.”). Even a cursory look at that website should have informed Trans Union of the perils of its approach to OFAC alerts. Trans Union argues that because the FTC, and not the Treasury Department, is the agency authorized to enforce the FCRA, the Treasury Department’s conclusions about the FCRA are not relevant. That argument only bolsters our belief that the jury acted reasonably in concluding that Trans Union’s actions were not “merely careless” but were with reckless disregard to the law. The jury may well have concluded that Trans Union made a strategic decision to include OFAC information in the manner it did because the OFAC alert was a separate product that could be sold to customers at additional cost. When considered together with our analysis in support of the jury’s finding of liability, we easily conclude that Trans Union substantially risked acting in violation of the law when it made the policy decision to exclude OFAC information from its FCRA compliance. Although such a finding cannot be made lightly, especially in a case of first impression, it is imperative that we do not allow “a company that traffics in the reputations of ordinary people” a free pass to ignore the requirements of the FCRA each time it creatively incorporates a new piece of personal consumer information in its reports. Dennis v. BEH-1, LLC, 520 F.3d 1066, 1071 (9th Cir.2008). Finally, Trans Union argues that the remitted punitive damages award violates its due process rights under the" }, { "docid": "11637151", "title": "", "text": "115 F.3d at 227. Moreover, the Cushman court held that a defendant may willfully violate the FCRA by actions that are “on the same order as willful concealments or misrepresentations.” Id. Based on the foregoing, summary judgment is inappropriate when there are genuine issues of material fact as to whether Defendant knowingly engaged in acts that violated the FCRA, acted with reckless disregard as to violating the FCRA, or willfully concealed or misrepresented information in an effort to skirt the requirements of the FCRA. At a minimum, Plaintiff can defeat summary judgment as to her § 1681i claims by showing Defendant acted in reckless disregard of Plaintiffs rights when engaging in investigations pursuant to § 1681i. Recklessness is commonly interpreted as conduct violating an objective standard — action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be known. See Safeco, 551 U.S. at 49, 127 S.Ct. 2201. Whether the Defendant’s conduct violates this objective standard is a fact-bound inquiry that should be answered by a jury. See Cushman, 115 F.3d at 223, 227 (reversing and remanding a trial court judgment as a matter of law and instructing trial court to consider Plaintiffs FCRA wilfulness claim in light of the reckless disregard standard). This is consistent with a number of Eastern District decisions which, following Cushman, have rejected motions for summary judgment in FCRA willfulness cases finding that the reckless disregard determination should be left for the jury. See Lawrence, 296 F.Supp.2d at 590 (denying summary judgment to CRA for FCRA willfulness claim); Crane, 282 F.Supp.2d at 321 (same); Evantash v. G.E. Capital Mortgage Servs., Inc., No. 02-cv-1188, 2003 WL 22844198, at *8 (E.D.Pa. Nov. 25, 2003) (same). Here, the issue of whether Defendant acted in reckless disregard when investigating Plaintiffs file and violated § 1681i presents a jury question. Plaintiff has provided evidence that, if true, shows that her file continually had inaccurate facts, Plaintiff notified Defendant of the inaecuracies on various occasions, and Defendant repeatedly let the inaccuracies continue for decades. (Pl.’s Resp. at 43.) Plaintiff put Defendant on notice" }, { "docid": "4846819", "title": "", "text": "alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”). Therefore, it is RECOMMENDED that BGC’s motion for summary judgment as to plaintiff's § 1681i claim be GRANTED. . A negligent violation of the FCRA subjects the CRA to actual damages resulting from its failure, court costs, and reasonable attorney’s fees, see 15 U.S.C. § 1681o, while a willful violation also subjects the CRA to statutory and punitive damages, see 15 U.S.C. § 1681n. . Courts have made clear that \"failure to follow reasonable procedures is a material element necessary for recovery under § 1681e(b).” Allmond v. Bank of Am., No. 3:07-cv-186-J-33JRK, 2008 WL 2445652, at *2 (M.D.Fla. June 16, 2008) (citation omitted). \"The standard for evaluating the reasonableness of an agency’s procedures is what a reasonably prudent person would do under the circumstances.” Neclerio v. Trans Union, LLC, 983 F.Supp.2d 199, 210 (D.Conn.2013) (citations and internal marks omitted). \"Judging the reasonableness of a [CRA’s] procedures involves weighing the potential harm from inaccuracy against the burden of safeguarding against such inaccuracy,” and \"[u]nder § 1681e(b) the standard is ‘maximum possible accuracy,’ which is more 'than merely allowing for the possibility of accuracy.' ” Price v. Trans Union, L.L.C., 839 F.Supp.2d 785, 793 (E.D.Pa.2012) (citations and internal marks omitted). . In Philbin v. Trans Union Corp., 101 F.3d 957, 963-66 (3d Cir.1996), abrogated on other grounds as recognized in Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir.2010), “.the Third Circuit discussed, without endorsement, three possible standards for plaintiff’s burden of proof on whether a defendant followed reasonable procedures for a section 1681e(b) claim.” Robertson v. Experian Info. Solutions, Inc., Civil No. LCV-09-0850, 2010 WL 1643579, at *3-4 (M.D.Pa. Apr. 22, 2010). “Under the most stringent standard, the burden of proof remains with the plaintiff to ‘produce some evidence beyond a mere inaccuracy in order to demonstrate the failure to follow reasonable procedures.’ ” Id. (quoting Phiibin, 101 F.3d at 965). \"This standard requires a plaintiff to produce minimal evidence from ‘which a trier of fact can infer a failure to follow reasonable procedures.” Id. (quoting" }, { "docid": "495281", "title": "", "text": "in support of his contention that PCC’s disregard of its FCRA violations was willful (i.e. reckless). As described in more detail above, Plaintiff provides evidence demonstrating that PCC, through its employee Ms. Villavicen-cio, cursorily considered all disputes using a semi-automated process, ignored material distinctions in records, and declined to consider any information beyond that provided in the account summary”); Bradshaw, 816 F.Supp.2d at 1076 (“defendants elected to comply with their FCRA obligations by providing general descriptions of plaintiffs’ dispute through an automated system.... [A] reasonable jury could find that a CRA acted in reckless disregard of its duties by relying exclusively on automated procedures that have been held to be unreasonable by numerous court decisions when the CRA was on notice of the possible inaccuracy of the automated responses”). Defendants disputed this conclusion at the hearing, asserting they were entitled to reach cohclusions based on information obtained from “reliable” furnishers. The court cannot agree. A furnisher’s reliability, as noted, is relevant in assessing whether a credit reporting agency can rely on information furnished, in the first instance, under § 1681e(b) and § 1785.14(b). As the Third Circuit held in Cushman v. Trans Union Corp., 115 F.3d 220, 225 (3d Cir.1997), however, “[t]he ‘grave responsibility’ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources.” Thus, “a ‘reinvestigation’ that merely shifts the burden back to the consumer and the credit grantor cannot fulfill the obligations contemplated by the statute.” Id. Defendants’ reliability argument shifts the entire burden of reinvestigation back to the consumer and credit furnisher. Reliability alone is therefore not sufficient to evade a finding of willfulness. Even were defendants permitted to rely on the reliability of the furnisher to avoid a finding of willfulness, the record lacks any evidence indicating that Sequoia is a “reliable” furnisher of credit; thus, Trans Union’s argument concerning Sequoia fails for that reason alone. With respect to the BOA HELOC account, there is no doubt that Bank of America is a well-established bank. Defendants argue that this, coupled with'the fact that the bank twice confirmed the accuracy" }, { "docid": "495239", "title": "", "text": "that the agency’s reinvestigation was unreasonable”); Lambert v. Beneficial Mortg. Corp., No. CV 05-05468-RBL, 2007 WL 1309542, *4-5 (W.D.Wash. May 4, 2007) (finding a question of fact as to whether an ACDV sent by a credit reporting agency contained sufficient information to comply with its reinvestigation duties). As respects Trans Union’s June 4, 2012 reinvestigation, the court cannot find thai Trans Union was permitted, as a matter of law, simply to rely on the ACDV system after having received complaints from Gri-goryan regarding the accuracy of the reporting. See Bradshaw, 816 F.Supp.2d at 1073-74 (“where a CRA is affirmatively on notice that information received from a creditor may be suspect, it is unreasonable as a matter of law for the agency to simply verify the creditor’s information through the ACDV process without additional investigation”); see also Cushman, 115 F.3d at 225 (“The ‘grave responsibility’ imposed by § 1681i(a) must consist of something more than merely parroting information received from other sources”); Apodaca, 417 F.Supp.2d at 1230-31 (credit reporting agencies cannot rely on automated procedures that make only superficial inquiries once the consumer has notified it that information is disputed). The court reaches the same conclusion with respect to Experian’s April 30 and June 6, 2012 reinvestigations. Although the reports Grigoryan disputed were removed the same day he requested that Experian remove them, Experian admits it used only the ACDV process to verify the reporting. A reasonable jury could thus find that Experian’s procedures were unreasonable. The court therefore declines to enter summary judgment in defendants’ favor on Grigoryan’s § 1681i and § 1785.16 claims pertaining to reinvestigation of the BOA HELOC. The jury will have to determine whether the information reported was inaccurate and whether defendants’ reinvestigation procedures were reasonable, b. The Sequoia Account Trans Union argues that its handling of the Sequoia account was reasonable as a matter of law, because it immediately initiated a reinvestigation of the account and advised Sequoia that Grigoryan disputed the account was his, and because it deleted the account on December 19, 2011, after Sequoia failed to respond to its reinvestigation. Because Trans" }, { "docid": "19885558", "title": "", "text": "Bonjorno, 494 U.S. 827, 835, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990)(The “starting point for interpretation of a statute is the language of the statute itself.”) (citations omitted). 15 U.S.C. § 1681e(b) states: “Whenever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” This language is not ambiguous; it creates an obligation on the part of the consumer reporting agency to ensure the preparation of accurate reports independent from § 1681i’s reinvestigation requirement. Section 1681i requires consumer reporting agencies to “reinvestigate free of charge” if “the completeness or accuracy of any item of information contained in a consumer’s file at a consumer reporting agency is disputed by the consumer and the consumer notifies the agency directly of such dispute.” 15 U.S.C. § 1681i(a)(1)(A). It is thus not necessarily apparent, on the face of the statute, that a § 1681i plaintiff must also adduce sufficient evidence to show that the disputed information was in fact inaccurate, as opposed to merely showing that the plaintiff disputed its accuracy and had informed the agency accordingly. Nevertheless, the weight of authority in other circuits indicates that without a showing that the reported information was in fact inaccurate, a claim brought under § 1681i must fail. See Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 (9th Cir.2008)(§ 1681i creates no duty to reinvestigate where “the credit report accurately refleet[s] the status of the information contained in the public records”) (citing Williams v. Colonial Bank, 826 F.Supp. 415, 418 (M.D.Ala.1993)); Kuehling v. Trans Union, LLC, 137 Fed.Appx. 904, 908 (7th Cir.2005) (unpublished) (“Without evidence of some inaccuracy in the Trans Union report or reinvestigation, Kuehling cannot establish that Trans Union violated the FCRA—either § 1681e(b) or § 1681i(a)(1)(A)”); Cahlin, 936 F.2d at 1160. But see Wadley v. Experian Info. Solutions, Inc., 241 Fed.Appx. 132, 136 (4th Cir.2007)(unpublished)(vacating and remanding grant of summary judgment to defendant credit agency where district court found plaintiff failed to establish that credit report contained inaccurate information but did not address plaintiffs" }, { "docid": "2494268", "title": "", "text": "to deviate from the common law understanding in applying the statute,” the Supreme Court held that “a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute’s terms, but [also] that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Id. at 69, 127 S.Ct. 2201. Willfulness can be established when a CRA adopts a general policy or practice that creates an unjustifiably high risk of violating FCRA. See, e.g., Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 620 (6th Cir.2012) (“policy prohibit[ing] [ ] employees from performing anything more than a cursory confirmation of [a consumer’s] status before reporting back to a CRA” was evidence of recklessness sufficient to create a genuine dispute precluding summary judgment). A CRA may also act willfully in connection with a particular transaction. Seamans v. Temple Univ., 744 F.3d 853, 868 (3d Cir.2014) (“A fur-nisher’s objectively unreasonable actions with respect to a particular consumer’s account can support a jury finding of willfulness.”). The latter category is illustrated in Adams v. National Engineering Service Corporation, 620 F.Supp.2d 319, 323-325 (D.Conn.2009), where the subject report included criminal records belonging to “Debra Adams” and “Debra Jean Adams” for a background investigation concerning “Deborah Adams.” The court noted that “a reasonable jury could find that, in preparing a background investigation report for [plaintiff] which included convictions pertaining to an individual with a different first name from a different state, [defendant] created ‘an unjustifiably high risk of harm ... so obvious that it should [have been] known.’ ” Id. at 330 n. 7 (alteration in original) (quoting Safeco, 551 U.S. at 68, 127 S.Ct. 2201). 2. The evidence at trial Much of the evidence that Plaintiff presented at trial regarding Defendant’s negligence is applicable to Plaintiffs claim for willfulness. As discussed in detail, supra, Plaintiff put forth evidence showing that Defendant required certain, minimal information before it would prepare a background report or run a search for criminal" }, { "docid": "23230514", "title": "", "text": "paid late,” and “[a]ceount involved in litigation.” Chiang does not dispute these are the CRA inquiries at issue, although none of them had been made when he first filed his federal lawsuit. Verizon has no record of its personnel having been contacted by CBCS with any additional inquiries regarding Chiang’s disputes. After completing its investigation of Chiang’s reported complaints, CBCS notified the CRAs in each instance that the information reported on Chiang’s account was accurate. C. District Court Proceedings On November 29, 2006, Chiang filed suit in the federal district court of Massachusetts, alleging, inter alia, violations of the FCRA and FDCPA and seeking damages. We describe specific claims below. On January 13, 2009, the district court granted Verizon NE’s motion for summary judgment. Chiang, 2009 WL 102707, at *12. In the course of its reasoning on the FCRA claim, the court held that Chiang had the burden to “identify affirmatively information that a furnisher of credit information could have uncovered through a reasonable investigation.” Id. at *9-10. The court noted that this circuit has recently announced a similar rule in the context of CRAs’ duty under the FCRA to reinvestigate information disputed by consumers. Id. at *10 (citing DeAndrade v. Trans Union LLC, 523 F.3d 61, 67 (1st Cir.2008)). The district court also ruled that, “absent any corroborating evidence,” a plaintiffs allegations of inaccuracies were insufficient to demonstrate information that might have been uncovered. Id. at *10. For this reason, it said, it declined to consider Chiang’s deposition testimony, affidavits, or demand letters when deciding whether he had demonstrated actual inaccuracies that Verizon NE could have discovered. Id. at *11. This appeal followed. II. Chiang’s claims under the FCRA and the FDCPA present several pure questions of law, including issues of statutory interpretation. The district court resolved the case on summary judgment. Both because these are issues of law and because the case is before us on summary judgment, our review is de novo. See Bristol W. Ins. Co. v. Wawanesa Mut. Ins. Co., 570 F.3d 461, 463 (1st Cir.2009). We may affirm the district court on any basis" }, { "docid": "22579527", "title": "", "text": "the information shall be provided.” Id. § 1785.16(d). The CRA must send such description “not later than 15 days after receiving a request from the consumer.” Id. A The district court held that “[b]e-cause there is no genuine dispute that Plaintiffs credit report was factually accurate, Defendants are entitled to judgment as a matter of law.” Carvalho, 588 F.Supp.2d at 1100. Carvalho contends that inaccuracy is not a required element of a reinvestigation claim under the CCRAA. She also argues that the item on her credit reports referencing the CCS collection account was inaccurate. “Our duty as a federal court in this case is to ascertain and apply the existing California law.” Munson v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir.2008) (per curiam) (internal quotation marks omitted). We are bound by pronouncements of the California Supreme Court on applicable state law, but in the absence of such pronouncements, we follow decisions of the California Court of Appeal unless there is convincing evidence that the California Supreme Court would hold otherwise. Id. The California courts have yet to consider whether a plaintiff must demonstrate that a disputed item is inaccurate to obtain relief for a violation of the CCRAA’s reinvestigation provisions. However, because the CCRAA “is substantially based on the Federal Fair Credit Reporting Act, judicial interpretation of the federal provisions is persuasive authority and entitled to substantial weight when interpreting the California provisions.” Olson v. Six Rivers Nat’l Bank, 111 Cal. App.4th 1, 3 Cal.Rptr.3d 301, 309 (2003) (internal citations omitted). Although the FCRA’s reinvestigation provision, 15 U.S.C. § 1681i, does not on its face require that an actual inaccuracy exist for a plaintiff to state a claim, many courts, including our own, have imposed such a requirement. See DeAndrade v. Trans Union LLC, 523 F.3d 61, 67(1st Cir.2008) (collecting cases). In Dennis v. BEH-1, LLC, 520 F.3d 1066 (9th Cir.2008), we held that a plaintiff filing suit under section 1681i must make a “prima facie showing of inaccurate reporting.” Id. at 1069. The inaccuracy requirement comports with the purpose of the FCRA, which is “to protect consumers" }, { "docid": "19885559", "title": "", "text": "as opposed to merely showing that the plaintiff disputed its accuracy and had informed the agency accordingly. Nevertheless, the weight of authority in other circuits indicates that without a showing that the reported information was in fact inaccurate, a claim brought under § 1681i must fail. See Dennis v. BEH-1, LLC, 520 F.3d 1066, 1069 (9th Cir.2008)(§ 1681i creates no duty to reinvestigate where “the credit report accurately refleet[s] the status of the information contained in the public records”) (citing Williams v. Colonial Bank, 826 F.Supp. 415, 418 (M.D.Ala.1993)); Kuehling v. Trans Union, LLC, 137 Fed.Appx. 904, 908 (7th Cir.2005) (unpublished) (“Without evidence of some inaccuracy in the Trans Union report or reinvestigation, Kuehling cannot establish that Trans Union violated the FCRA—either § 1681e(b) or § 1681i(a)(1)(A)”); Cahlin, 936 F.2d at 1160. But see Wadley v. Experian Info. Solutions, Inc., 241 Fed.Appx. 132, 136 (4th Cir.2007)(unpublished)(vacating and remanding grant of summary judgment to defendant credit agency where district court found plaintiff failed to establish that credit report contained inaccurate information but did not address plaintiffs § 1681i claim, and plaintiff argued that agency “had a duty to reinvestigate the credit report ... regardless of whether the [] report was accurate.”); Dickens v. Trans Union Corp., 18 Fed.Appx. 315, 319 (6th Cir.2001)(unpublished)(“Although a showing of inaccuracy is an essential element of a § 1681e(b) claim ... it is unclear whether a showing of inaccuracy is required for § 1681i liability ....”) (citations omitted). We find the reasoning of the majority of other appellate courts persuasive. The FCRA is intended to protect consumers against the compilation and dissemination of inaccurate credit information. See Equifax v. Fed. Trade Comm’n, 678 F.2d 1047, 1048 (11th Cir.1982)(noting stated purpose of FCRA is “to prevent consumers from being unjustly damaged because of inaccurate or arbitrary information in a credit report”) (citations omitted); S.Rep. No. 108-166, 108th Cong., 1st Sess. 5-6 (2003)(“The driving force behind the [1996 amendments to the FCRA] was the significant amount of inaccurate information that was being reported by consumer reporting agencies and the difficulties that consumers faced getting such errors corrected.”). At" }, { "docid": "4846788", "title": "", "text": "were associated with the full name and social security number of plaintiff. Although BGC has submitted evidence of its procedures and its efforts to match criminal records relating to the individual that is the subject of the background report, plaintiff has submitted evidence that despite BGC’s efforts, the records reported did not relate to plaintiff, and he has also pointed to other matching identifiers that did not match his identifying information, as well as shown that BGC is capable of utilizing social security numbers during the dispute process to confirm whether the records are in fact a match to the individual. Indeed, Kessler even admitted that the automated computer program had no way of differentiating between individuals with the same name and date of birth, and that after it compiled its initial matching records, it then placed the burden on the prospective employer to indicate whether any records did not match the individual. See [Doc. 43 at 67-68; Doc. 37 ¶ 17]. Contrary to BGC’s assertions, the Court cannot find, as a matter of law, that no reasonable jury could find that the errors in plaintiffs criminal background report did not result from a willful failure to follow reasonable procedures to assure maximum possible accuracy in preparing the report. See Bradshaw v. BAC Home Loans Servicing, LP, 816 F.Supp.2d 1066, 1076-77 (D.Or.2011) (citation omitted) (“[A] reasonable jury could find that a CRA acted in reckless disregard of its duties by relying [ ] on automated procedures ... when the CRA was on notice of the possible inaccuracy of the automated responses. Therefore, this claim must [] be decided by a jury.”); see also Barron v. Trans Union Corp., 82 F.Supp.2d 1288, 1299 n. 9 (M.D.Ala.2000) (citations omitted) (finding disputed issues of fact on the issue of willfulness entitled plaintiff to present the issue to a jury and noting that the court’s “duty at [the summary judgment stage was] not to weigh the evidence or question its veracity; rather, the court must only eliminate claims upon which no rational jury could find for [p]laintiff.”). In short, the Court finds that disputed" } ]

[ { "docid": "4311839", "title": "", "text": "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. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. Under these two provisions, one who wishes to bring an action against the government pursuant to the FTCA must first present an administrative claim to the appropriate federal agency. No action may be brought against the government until that agency has finally denied the claim in writing. Once the agency’s final, written denial has been sent to the claimant, the claimant has six months within which to bring his FTCA action against the government. Unless he does so, his action is forever barred. The district court dismissed Ms. Reynolds’ first complaint because she filed it before the VA sent her written notice of final denial of her claim. The court was clearly required to do so by the foregoing provisions, which are entirely unambiguous; it had no subject matter jurisdiction. We so held in Gregory v. Mitchell, 634 F.2d 199 (5th Cir.1981): Although appellants have filed an administrative claim for relief against the FDIC as required by the FTCA, they concede they did not await the required six month period prior to bringing this action, nor was there the required formal denial. Lacking jurisdiction, the district court was required to dismiss the suit against the United States. Sparks v. Wyeth Laboratories, Inc., 431 F.Supp. 411 (W.D.Okla.1977) . . . . Waivers of sovereign immunity must be strictly construed. Section 2675 is moré than a mere statement of procedural niceties. It requires that jurisdiction must exist at the time the complaint is filed. Id. at 204 (footnote omitted). Gregory" } ]

[ { "docid": "8992946", "title": "", "text": "claim. DISCUSSION Section 2401(b) provides that a tort claim against the United States is barred “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.” No notice of final denial was issued to Parker by the Department of Agriculture regarding his claim. 28 U.S.C. § 2675(a) states that 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.” The Government argues that the six month period of limitations set forth in section 2401(b) began to run when Parker filed his initial action in August of 1989. It contends that, by virtue of section 2675(a), the filing of the action constituted a “final denial of the claim by the agency” for purposes of section 2401(b). No precedent supports such a reading of these sections. We reject the argument. Section 2675 requires that a claim be presented to the appropriate federal agency prior to bringing suit under the FTCA. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980). If an administrative claim has been properly filed, section 2675(a) provides that a claimant need not wait longer than six months for the agency to act on his claim before bringing suit pursuant to the FTCA. This ensures that the exhaustion requirement does not unduly burden claimants. After six months have elapsed, section 2675(a) specifies that the claimant has the option “any time thereafter*’ to pursue his claim in district court under the FTCA. Section 2401(b) contains two statutes of limitations. The first requires that an administrative claim be filed with the appropriate agency within two years after the claim accrued. Parker met this requirement. The second requires that an FTCA suit be brought 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.”" }, { "docid": "8992948", "title": "", "text": "By its express terms, this second limitations period applies only when the agency has made a final disposition of the claim and notified the claimant by mail. The six month period does not begin to run until the agency has notified the claimant of a final denial in accordance with section 2401(b). See Conn v. United States, 867 F.2d 916, 920 (6th Cir.1989). The same argument which the Government presents to this Court was considered and rejected in Hannon v. United States Postal Serv., 701 F.Supp. 386 (E.D.N.Y.1988). We agree with the reasoning of that decision. The express language of sections 2401(b) and 2675(a), as well as a consideration of their function and purpose, indicate that the filing of a claim pursuant to section 2675(a) should not trigger the six month limitation period under section 2401(b). It would be illogical “that § 2675(a), which is designed to benefit plaintiffs by excusing them from waiting for an agency denial prior to filing suit, should ... be invoked to the detriment of plaintiffs whose actions have been dismissed without prejudice for reasons un related to the merits of their claims. Id. at 389 (emphasis in original). CONCLUSION The Department of Agriculture has not notified Parker by certified or registered mail of a final denial of his claim. Thus, section 2401(b) does not time bar his FTCA action. Under section 2675(a), Parker may institute his FTCA claim “at any time.” Because his prior suit was dismissed without prejudice, Parker is entitled to pursue his FTCA action. We make no comment on the merits of his claim. REVERSED. . The government parces dicta from Miller v. United States, 741 F.2d 148, 150-51 (7th Cir. 1984), to support its interpretation of the statutes. However, in Miller, the plaintiff brought a second Federal Tort Claims Act action against a postal employee within six months after filing the original complaint. Id. Thus, the Miller court did not face the question now before us." }, { "docid": "9865165", "title": "", "text": "The letter of denial notified Light-foot that he had six months to file a civil action in the District Court or, alternatively, that he could request reconsideration by the USPS within six months of the date of the denial. Lightfoot alleges that he sought reconsideration three weeks prior to the deadline by mailing a first class letter to the USPS on April 16, 2007. Lightfoot claims that the letter was sent by his attorneys to Richard Teszner, the Tort Claims Coordinator for the USPS. However, the USPS has no record of having received the letter. Lightfoot filed the instant complaint in the District Court on January 4, 2008. The USPS moved to dismiss Lightfoot’s complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. The District Court granted the motion, holding that the FTCA requires proof of receipt of a request for reconsideration. For the reasons stated, we will affirm the judgment of the District Court. II. This Court has jurisdiction to review the District Court’s order pursuant to 28 U.S.C. § 1291. “The standard of review for subject matter jurisdiction is plenary.” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 219 (3d Cir.2005). III. The FTCA precludes suit against the United States unless the claimant has first presented the claim to the relevant Federal agency and the claim has been finally denied. See 28 U.S.C. § 2675(a). The final denial requirement is “jurisdictional and cannot be waived.” Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir.1971). After the denial of an administrative claim, the claimant has two options: (1) he may file suit in the District Court within six months of the denial pursuant to 28 U.S.C. § 2401(b); or (2) he may file a request for reconsideration directly with the agency to which the claim was originally made. Regulation 39 C.F.R. § 912.9(b)-(c) sets out the filing requirements for reconsideration of the denial of a claim by the USPS: (b) Prior to the commencement of suit and prior to the expiration of the 6 month period provided in 28 U.S.C. § 2401(b), a claimant, his duly" }, { "docid": "613414", "title": "", "text": "Houston proffers three arguments to extricate himself from this predicament. First, relying on Staple and Kelley, he argues that his claim against the United States is not subject to the six-month limitations period in section 2401(b). However, for the reasons given in Part I, we have rejected Staple and Kelley. Second, Houston distinguishes cases, such as Henderson and Meeker, dismissing claimants who failed to file an administrative claim by pointing out that he did file an administrative claim. Apparently we are to believe that these cases do not apply to Houston. This reasoning is unpersuasive. The FTCA either applies or not. If Houston was required to pursue his claim by the methods and in the time provided by the FTCA, as we held in Part I, then his compliance with the administrative exhaustion requirement does not excuse his failure to timely file suit. Halfway compliance with section 2401(b) is not enough. Houston’s third line of reasoning is that his state court suit tolls the six-month limitations period. For this proposition, he relies on McGowan v. Williams, 623 F.2d 1239, 1241 (7th Cir.1980). The Seventh Circuit held that a state suit against the driver and the government agency, timely commenced after administrative denial, complied with section 2401(b), even though the action was not removed to federal court, and thus the United States was not made a formal party, until the limitations period had expired. See also Whistler v. United States, 252 F.Supp. 913 (N.D.Ind.1966) (pre-1966 amendments case; suit filed against individual in state court tolls statute as to United States). We need not decide whether McGowan states the proper rule, because it is distinguishable on two grounds. First, in McGowan the driver “received proper notice of the plaintiffs action within the time limitation of Section 2401(b).” 623 F.2d at 1244. The court deemed this to be notice on the United States. Id. By contrast, Houston did not serve any defendant within the six-month limitations period. Second, unlike the plaintiff in McGowan, Houston is relying on a suit brought before he had exhausted his administrative remedies. No court could have tried his" }, { "docid": "613396", "title": "", "text": "the collision, Houston sued the United States; Joseph Howard, the driver of the postal van; and the USPS in Louisiana court. Pursuant to his direction, process was not issued or served. Just under two years after the accident, on January 17, 1978, Houston filed an administrative claim with the USPS. As we will explain, the filing of such an administrative claim within two years after its accrual was required by the Federal Tort Claims Act (FTCA) (codified at 28 U.S.C. §§ 1346(b), 1402(b), 1504, 2110, 2401, 2402, 2411, 2412, 2671-2680). About three months after this claim was filed, the USPS notified Houston’s attorney of its denial. That notification letter, dated April 26, 1978, stated, “[I]f your client is dissatisfied with the final action on his clain [sic], he may file suit in an appropriate United States District Court not later than six months from the date of this letter.” (Emphasis added.) The six-month limitations period explained in the letter is codified at 28 U.S.C. § 2401(b). Houston’s counsel stated during oral argument in this court that the denial letter was not “diar-ied” on a “prescription card” at his law firm. Because of this oversight, it was not until April 23,1980, almost two years after the administrative denial, that Houston for the first time caused process in his Louisiana court suit to be served on the defendants therein. After being served, the United States removed the case to federal court, as authorized by 28 U.S.C. §§ 1441(a) and 1442(a)(1). (For some reason, the United States did not rely on the FTCA removal statute — 28 U.S.C. § 2679(d).) The USPS and the United States moved to dismiss the case on grounds that the United States was the only proper defendant and Houston had not sued it within six months of the administrative denial of his claim. The district court dismissed the USPS (and Howard), but denied the dismissal motion as to the United States. In a thorough opinion, the court reasoned that Houston’s state court suit sufficed as timely compliance with the limitations requirement of the FTCA. Because the district court" }, { "docid": "259977", "title": "", "text": "the district court granted the government’s motion and dismissed the Barneses’ claims with prejudice. The Barneses timely filed this appeal, and we now exercise jurisdiction pursuant to 28 U.S.C. § 1291. II A First, we conclude that the district court soundly analyzed whether Lawsuit # 2 was time-barred and properly determined that it was. Consequently, we find that the Barneses’ action was properly dismissed as time-barred. See Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“If the allegations ... show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.... ”); accord Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir.2009). 1 In assessing the district court’s ruling that Lawsuit #2 was barred by the statute of limitations, we turn first to the court’s interpretation and application of the statute of limitations itself, which we review de novo. See Braxton v. Zavaras, 614 F.3d 1156, 1159 (10th Cir.2010). We start by observing that the FTCA has both an administrative-exhaustion requirement, set forth in 28 U.S.C. § 2675(a), and a statute of limitations, set forth in 28 U.S.C. § 2401(b). Combined, these provisions act as chronological bookends to an FTCA claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely. The Barneses conflate these two distinct features of the statutory scheme when they argue that compliance with the administrative-exhaustion requirement under § 2675(a)’s “deemed denial” provision effectively exempted them from § 2401(b)’s six-month limitations period. To the contrary (as the district court correctly found), the six-month limitations period in § 2401(b) is triggered by an agency’s formal denial of a potential plaintiff’s administrative claims — regardless of whether that plaintiff has filed a claim pursuant to § 2675(a)’s “deemed denial” provision. The administrative-exhaustion requirement applicable to FTCA claims “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). Section 2675(a)" }, { "docid": "23224982", "title": "", "text": "they had acted with “deliberate indifference” “in violation of the Eighth Amendment.” Perhaps most tellingly, however, is Jackson’s own classification of his legal claim for the May 16 incident in his later filings. In a document titled “Further Opposition to Entry Discussing Selected Matters,” Jackson stated that the May 16 incident “was a negligence act but a very serious one.” Then, in a “Statement of Genuine Issues,” Jackson refers to “the negligence act that happened on May 16, 1996 when plaintiff fell.” Jackson did not raise a Bivens claim against these three defendants in his original complaint — nor did he try to reassert one in his amended complaint. The district court correctly dismissed the claims against Officers Bushy, Gregg, and Robinson because they were improper defendants under the FTCA. B. The district court’s dismissal of the United States Jackson next argues that the district court erred by dismissing his FTCA claim against the United States as untimely. Jackson acknowledges that he added the United States as a party to his suit more than six months after the denial of his claim for administrative relief. See 28 U.S.C. § 2401(b). But Jackson argues that his substitution of the United States as a party related back to his original complaint, see Fed.R.Civ.P. 15(c), which was filed before the six-month statute of limitations had expired. Federal Rule of Civil Procedure 15(c)(1)(A) provides that an amendment will relate back to the original pleading if, first, “the law that provides the applicable statute of limitations allows relation back.” The FTCA does not specifically address relation back of amendments, but it clearly prohibits actions “begun” after the statute of limitations period: “A tort claim against the United States shall be forever barred ... unless action is begun within six months after ... notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). Because the FTCA effects a waiver of the United States’s sovereign immunity, see United States v. Olson, 546 U.S. 43, 44-45, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005), we must be sure that relation" }, { "docid": "613411", "title": "", "text": "who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 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.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612 (2d Cir.1983) (per Friendly, J.); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir.1984); Schuler v. United States, 628 F.2d 199, 201 (D.C.Cir.1980); cf. Reynolds v. United States, 748 F.2d 291 (5th Cir.1984) (dismissing amended complaint brought against United States after the expiration of the six-month period, even though plaintiff had timely filed an administrative claim). These limitations periods are jurisdictional. Equitable considerations that may waive or toll limitations periods in litigation between private parties do not have that same effect when suit is brought against the sovereign. E.g., Goff v. United States, 659 F.2d 560, 561 (5th Cir.1981). This is so because under the doctrine of sovereign immunity the government's exposure to liability can be no greater than it permits. Id.; see also Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981) (filing of suit within six months of administrative denial is a jurisdictional requirement); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975) (stating that because it is a waiver of sovereign immunity, the six-month filing requirement must be followed strictly);" }, { "docid": "23707448", "title": "", "text": "ORDER AND AMENDED OPINION ORDER The opinion filed December 8, 2008, slip op. at 16067, 548 F.3d 1286, is replaced by the amended opinion filed concurrently with this order. With these amendments, Judges Graber and Rawlinson have voted to deny the petition for rehearing en banc, and Judge Wright has so recommended. The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. Fed. R.App. P. 35. The petition for rehearing en banc is DENIED. No further petitions for rehearing or for rehearing en banc will be entertained. OPINION GRABER, Circuit Judge: We must decide whether the statute of limitations in § 2401(b) of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2401(b), is jurisdictional and, in turn, whether courts can employ the doctrines of equitable estoppel or equitable tolling to extend the limitations period. We hold that the statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional and, consequently, that equitable doctrines that otherwise could excuse a claimant’s untimely filing do not apply. Accordingly, we affirm the district court’s judgment, which dismissed this action. FACTUAL AND PROCEDURAL HISTORY Plaintiff Michael Burnell Marley received treatment for prostate cancer at the Puget Sound Healthcare System Hospital. He alleges that he experienced complications resulting in physical injury. In February 2004, he filed an administrative tort claim with the Department of Veterans Affairs. On October 22, 2004, the Department of Veterans Affairs sent Plaintiff a notice of final denial of his tort claim. The letter, addressed to Plaintiffs lawyer at the time, stated that Plaintiff could file suit against the United States under the FTCA. The notice informed Plaintiffs lawyer that any action “must be initiated within 6 months after the date of the mailing of this notice of final denial as shown by the date of this letter,” that is, within six months of October 22, 2004. In March 2005, within that six-month" }, { "docid": "259978", "title": "", "text": "both an administrative-exhaustion requirement, set forth in 28 U.S.C. § 2675(a), and a statute of limitations, set forth in 28 U.S.C. § 2401(b). Combined, these provisions act as chronological bookends to an FTCA claim, marking both a date before which a claim may not be filed and a date after which any filing is untimely. The Barneses conflate these two distinct features of the statutory scheme when they argue that compliance with the administrative-exhaustion requirement under § 2675(a)’s “deemed denial” provision effectively exempted them from § 2401(b)’s six-month limitations period. To the contrary (as the district court correctly found), the six-month limitations period in § 2401(b) is triggered by an agency’s formal denial of a potential plaintiff’s administrative claims — regardless of whether that plaintiff has filed a claim pursuant to § 2675(a)’s “deemed denial” provision. The administrative-exhaustion requirement applicable to FTCA claims “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). Section 2675(a) provides: 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 any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). In other words, to meet the threshold requirement of administrative exhaustion, plaintiffs must either (1) have their administrative claims finally denied by the relevant federal agency; or (2) if the agency fails to act on their administrative claims within six months of" }, { "docid": "8992947", "title": "", "text": "the argument. Section 2675 requires that a claim be presented to the appropriate federal agency prior to bringing suit under the FTCA. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980). If an administrative claim has been properly filed, section 2675(a) provides that a claimant need not wait longer than six months for the agency to act on his claim before bringing suit pursuant to the FTCA. This ensures that the exhaustion requirement does not unduly burden claimants. After six months have elapsed, section 2675(a) specifies that the claimant has the option “any time thereafter*’ to pursue his claim in district court under the FTCA. Section 2401(b) contains two statutes of limitations. The first requires that an administrative claim be filed with the appropriate agency within two years after the claim accrued. Parker met this requirement. The second requires that an FTCA suit be brought 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.” By its express terms, this second limitations period applies only when the agency has made a final disposition of the claim and notified the claimant by mail. The six month period does not begin to run until the agency has notified the claimant of a final denial in accordance with section 2401(b). See Conn v. United States, 867 F.2d 916, 920 (6th Cir.1989). The same argument which the Government presents to this Court was considered and rejected in Hannon v. United States Postal Serv., 701 F.Supp. 386 (E.D.N.Y.1988). We agree with the reasoning of that decision. The express language of sections 2401(b) and 2675(a), as well as a consideration of their function and purpose, indicate that the filing of a claim pursuant to section 2675(a) should not trigger the six month limitation period under section 2401(b). It would be illogical “that § 2675(a), which is designed to benefit plaintiffs by excusing them from waiting for an agency denial prior to filing suit, should ... be invoked to the detriment of plaintiffs whose actions have been" }, { "docid": "613410", "title": "", "text": "was acting in the scope of his employment, remove the case, and procure dismissal on the ground that plaintiff must first seek administrative relief. By that time it is too late for such relief and plaintiff is left without a remedy. Apprehension of such “sandbagging” underlies Kelley’s holding that plaintiffs injured in collisions are not subject to the FTCA’s administrative exhaustion require ment. See, e.g., Wollman, 637 F.2d at 549 (distinguishing Kelley on this basis); Reiser v. Di Pietro, 78 F.R.D. 541, 542 (N.D.Ill.1978) (same). In the present case, however, Houston was not ignorant of the fact that Howard was in the course of his employment for the USPS. The postal van was clearly marked as such, and Houston's knowledge is conclusively demonstrated by the fact that he sued the United States and USPS in state court and timely filed an FTCA administrative claim. Therefore, we hold that before the United States is forced to defend a tort suit arising from a collision between a private vehicle and a government vehicle, the plaintiff-at least one who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 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.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612" }, { "docid": "23076195", "title": "", "text": "I. They argued that defense counsel’s repudiation of the agreement constituted an exceptional circumstance warranting such relief. The district court denied plaintiffs’ motion. Plaintiffs appeal, challenging the district court’s dismissal of Lehman II and its refusal to reinstate Lehman I. STATUTE OF LIMITATIONS ' APPLICABLE TO LEHMAN II We review de novo a district court’s interpretation of a statute. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1315 (9th Cir.1998). The statutes that we interpret here are 28 U.S.C. §§ 2401(b) and 2675(a). Title 28 U.S.C. § 2401(b) contains two provisions pertaining to the timing of FTCA litigation. The first requires that any tort claim against the United States be “presented in writing to the appropriate Federal agency within two years after such claim accrues.” Plaintiffs satisfied that requirement by filing their administrative claim with the Postal Service on May 28,1993, less than four months after the accident. The second provision requires that any tort action be brought “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.” Taken together, those statutes are statutes of limitation that address the question: Was the claimant’s FTCA action brought too late? Title 28 U.S.C. § 2675(a), on the other hand, addresses a different question: Was the claimant’s FTCA action brought too early? That section prohibits a claimant from bringing an FTCA action “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.” (Emphasis added.) A claimant need not, however, await an agency’s response indefinitely. Section 2675(a) further provides that, if the agency fails “to make final disposition of a claim within six months after it is filed,” the claimant may, at any time thereafter, deem the agency’s silence to be “a final denial of the claim for purposes of this section.” (Emphasis added.) Thus, if an agency fails to issue a notice of final denial within six months of receiving" }, { "docid": "23707453", "title": "", "text": "the six-month time limit and because he could not demonstrate affirmative misconduct by the government. The court rejected Plaintiffs equitable tolling argument on the ground that he was not excusably ignorant of the six-month limitations period. Plaintiff timely appealed from the resulting judgment, which dismissed the second action as untimely. DISCUSSION The FTCA provides that every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. 28 U.S.C. § 2401(a). The statute goes on to state, as relevant here: “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 ... of notice of final denial of the claim by the agency to which it was presented.” Id. § 2401(b). Plaintiff filed his first action within six months of the mailing date on the notice of final denial from the Department of Veterans Affairs. But Plaintiff voluntarily dismissed that action. Plaintiff recognizes that, by the time he filed the second action, the six-month period had run. He argues, though, that the January 27, 2006, letter misled him into thinking that he would be able to file suit on the same claim if the action were dismissed “without prejudice.” Thus, he maintains, either equitable estoppel or equitable tolling should save his suit from dismissal. As a threshold matter, we must decide whether we have jurisdiction over a claim that does not meet the deadlines contained in § 2401(b). See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (stating that a federal court generally may not rule on the merits of a case without first determining that it has jurisdiction). We conclude that we do not have" }, { "docid": "259989", "title": "", "text": "administrative claim denied, the statute makes clear that this constitutes a “final denial” only for purposes of determining whether the administrative-exhaustion requirement is satisfied, i.e., whether it is still too early to file a claim. By contrast, § 2401(b) describes the time at which it is too late to file. The six-month window described by this provision opens only upon the “mailing ... of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b) (emphasis added). Ordinarily, this means that, regardless of whether plaintiffs have already “deemed” their administrative claims denied and commenced a suit against the government under the FTCA, a formal denial of those claims triggers the six-month limitations period described in § 2401(b). 2 Having clarified the operation of § 2401(b), it is a fairly straightforward matter to conclude that the Barneses’ Lawsuit # 2 was untimely. The Barneses filed their administrative claims on May 20, 2010. A year later, the agency had not yet acted on their claims, so the Barneses invoked § 2675(a), “deemed” their claims denied for purposes of exhaustion, and filed Lawsuit # 1 on May 13, 2011. While Lawsuit # 1 was still pending, the BATF formally denied the Barneses’ claims, effective October 25,2011, triggering the six-month statute of limitations period of § 2401(b), which would expire on April 25, 2012. On March 23, 2012, the district court granted the government’s pending motion to dismiss Lawsuit # 1. Although the Barneses at this point had roughly a month remaining in which to refile within the statute of limitations, they did not do so. Instead, they waited until August 22, 2012, to file Lawsuit # 2 — viz., nearly four months after the statute of limitations had run. It is plain from this chronology of events that the district court correctly ruled that, “absent some basis for avoiding the FTCA’s limitations period, [the Barneses’] claims [in Lawsuit #2 were] time-barred.” Aplt.App. at 100. 3 The Barneses disagree, arguing that Lawsuit # 2 is actually timely because it relates back to Lawsuit # 1 under" }, { "docid": "23076196", "title": "", "text": "denial of the claim by the agency to which it was presented.” Taken together, those statutes are statutes of limitation that address the question: Was the claimant’s FTCA action brought too late? Title 28 U.S.C. § 2675(a), on the other hand, addresses a different question: Was the claimant’s FTCA action brought too early? That section prohibits a claimant from bringing an FTCA action “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.” (Emphasis added.) A claimant need not, however, await an agency’s response indefinitely. Section 2675(a) further provides that, if the agency fails “to make final disposition of a claim within six months after it is filed,” the claimant may, at any time thereafter, deem the agency’s silence to be “a final denial of the claim for purposes of this section.” (Emphasis added.) Thus, if an agency fails to issue a notice of final denial within six months of receiving an administrative claim, “the claimant may either deem it denied and file suit in district court at any time prior to final agency action or the claimant may await final agency action and file suit within six months thereafter.” Anderson v. United States, 803 F.2d 1520, 1522 (9th Cir.1986). Plaintiffs in this case properly invoked section 2675(a) to perfect the timeliness of Lehman I. They presented their administrative claim to the Postal Service in a timely manner but did not receive the agency’s notice of final denial within six months thereafter. Accordingly, plaintiffs deemed their claim denied under section 2675(a) ■ and filed and served their complaint in Lehman I. The United States does not dispute the timeliness of Lehman I. What it does contest, however, is the timeliness of Lehman II. The United States contends that, once the Postal Service properly mailed the notice of final denial, the six-month limitations period of 28 U.S.C. § 2401(b) started to run, even though more than six months had passed since the filing of the administrative claim" }, { "docid": "1403711", "title": "", "text": "States as defendant in a FTCA suit results in a lack of subject matter jurisdiction. Allgeier v. United States, 909 F.2d 869, 871 (6th Cir.1990). Assuming arguendo that suit was brought under the FTCA against the United States, a claim must first be presented to the appropriate federal agency and that claim be finally denied by the agency in writing prior to filing a FTCA claim. 28 U.S.C. § 2675(a). A tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency within two years after such claim accrues or unless FTCA action is begun six months after final denial of the claim by the agency. 28 U.S.C. § 2401(b). A claim under the FTCA must be filed within six years of when the action first accrues. 28 U.S.C. § 2401(a). In the present case, plaintiffs common-law tort claims should be filed against the United States under the FTCA rather than the DEA, INS, or agent Hawes. Leave to amend the complaint would be appropriate but plaintiff has not exhausted her administrative remedies. However, plaintiff is not yet foreclosed from pursuing those remedies. Plaintiff claims her cause of action arises out of events occurring on October 8, 1991. Neither the two-year statute of limitations for filing a claim with the appropriate federal agency nor the six-year statute of limitations for the FTCA have run. Accordingly, plaintiffs common-law tort claims against the federal defendants should be dismissed without prejudice in order to follow the procedures as required under the FTCA. 3. Section 1983 claims — color of federal law. Plaintiff alleges violations of 42 U.S.C. § 1983 in count III against agent Hawes and in count IV against the DEA and INS. First, the federal defendants maintain that defendant Hawes is not subject to suit under § 1983 since he acts under color of federal law, not state law as required by § 1983. The court agrees with this contention to the extent that the allegations would be against Hawes acting on his own. Every person who, under color of any statute, ordinance," }, { "docid": "1018004", "title": "", "text": "this case in the context of Sections 323 and 324A of the Restatement. . The government also argues that Count III could be dismissed for failure to exhaust (or invoke) administrative remedies. Section 2675(a) of Title 28 provides that a tort claim against the United States shall not be instituted unless the claimant has first presented his claim to the appropriate federal agency and the claim has been finally denied by the agency. The claimant may construe a failure to rule on the administrative claim within six months as a final denial. Section 2401(b) of Title 28 provides that a tort claim is barred unless plaintiff presents his claim to the agency within two years after the claim accrues, or unless suit is commenced within six months after the final agency denial. Plaintiff Arvanis filed a complaint with the agency on December 29, 1982. While we don’t know exactly when the claim accrued, Noslo did not become the prime contractor until January 8, 1981, less than two years earlier. The filing of the administrative claim was thus timely, but it was not filed until after the district court had already dismissed the original complaint dealing with the same claims. While there is an apparent reversal of the proper order for filing administrative claims and civil actions, there is an interesting twist here in that the complaint was not instituted as a tort claim. The tort claims procedures of 28 U.S.C. § 2671 etseq. are thus arguably inapplicable. Plaintiff Arvanis thought he was filing suit under the Miller Act, which contains no reference to tort claims procedures; the only problem is that the Miller Act provides no basis for jurisdiction over the United States. It was the district court that conceptualized the case as a tort claim, and decided it on that basis. By the time plaintiff did file a complaint under the FTCA (the amended complaint of January 31, 1983), the administrative claim had been filed, but there was no final denial and six months had not yet passed. The claim was thus premature — but then, having been granted" }, { "docid": "613413", "title": "", "text": "Quinton v. United States, 304 F.2d 234, 242 (5th Cir.1962) (Hutcheson, J., concurring) (\"Section 2401(b) is not a statute of limitations, within the legal definition of that term, ... it imposes ... a jurisdictional prerequisite to recovery .. . .\"); L. Jayson, supra § 275.02 (discussing the apparently unanimous view that section 2401(b) is a jurisdictional prerequisite). A recapitulation of the procedural history of this case shows why the district court had no jurisdiction. Within two years of the accident, Houston sued the USPS, Joseph Howard, and the United States in state court. Houston then timely filed an FTCA administrative claim. After the April 26, 1978 denial of this claim, Houston had six months to file suit against the United States. However, Houston has never filed suit in federal court. Nor did he serve process on any of the defendants in his premature state suit until almost two years after the administrative denial. In short, Houston did nothing between the time that the USPS denied his claim and the expiration of the six-month limitations period. Houston proffers three arguments to extricate himself from this predicament. First, relying on Staple and Kelley, he argues that his claim against the United States is not subject to the six-month limitations period in section 2401(b). However, for the reasons given in Part I, we have rejected Staple and Kelley. Second, Houston distinguishes cases, such as Henderson and Meeker, dismissing claimants who failed to file an administrative claim by pointing out that he did file an administrative claim. Apparently we are to believe that these cases do not apply to Houston. This reasoning is unpersuasive. The FTCA either applies or not. If Houston was required to pursue his claim by the methods and in the time provided by the FTCA, as we held in Part I, then his compliance with the administrative exhaustion requirement does not excuse his failure to timely file suit. Halfway compliance with section 2401(b) is not enough. Houston’s third line of reasoning is that his state court suit tolls the six-month limitations period. For this proposition, he relies on McGowan v." }, { "docid": "16299167", "title": "", "text": "one of the conditions of the government’s waiver of sovereign immunity under the FTCA, and the district court lacks subject matter jurisdiction to proceed under the FTCA if a plaintiff fails to satisfy the FTCA’s timing requirements set forth in § 2401(b). Dahl v. United States, 319 F.3d 1226, 1228 (10th Cir.2003). The doctrine of sovereign immunity precludes suit against the United States without the consent of Congress; the terms of its consent define the extent of the court’s jurisdiction. The applicable statute of limitations is a term of consent. The plaintiffs failure to sue within the period of limitations is not simply a waivable defense; it deprives the court of jurisdiction to entertain the action. Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 592 (9th Cir.1990). B. Franklin Argues Section 2101(b) Does Not Apply Franklin does not dispute that the statute of limitations in § 2401 expired prior to its commencement of Franklin IV. Rather, it argues that § 2401(b) does not apply. Aplt. Reply Br. at 16. First, it argues that a Kansas saving statute permits it to refile its otherwise untimely claims. Aplt. Opening Br. at 29-32; Aplt. App. at 178. Second, it argues that its use of Bankruptcy Code § 106’s waiver of sovereign immunity abrogates any conditions on the waiver found in the FTCA, including the statute of limitations provided in § 2401(b). We find no merit in either proposition. 1. The Kansas Saving Statute Franklin contends that Franklin IV is not time-barred because it relates back to the filing date of Franklin III by virtue of the Kansas saving statute, which allows an action to be refiled within six months if the original action was timely commenced and was dismissed for reasons other»than on the merits. Kan. Stat. Ann. § 60-518. Franklin argues on appeal that the bankruptcy court and the district court erred in rejecting application of the Kansas saving statute. These courts rejected application of § 60-518 on the basis that Franklin III had been dismissed for failure to state a claim under Rule 12(b)(6) and, therefore, had failed on the" } ]

[ { "docid": "22667357", "title": "", "text": "421 U. S. 240, 247 (1975). Whenever damages awards at the trial level are small, a successful plaintiff will have less incentive to defend the award on appeal. As Rule 11 is not a fee-shifting statute, the policies for allowing district courts to require the losing party to pay appellate, as well as district court attorney’s fees, are not applicable. “A movant under Rule 11 has no entitlement to fees or any other sanction, and the contrary view can only breed appellate litigation.” American Judicature Society, supra, at 49. We affirm the Court of Appeals’ conclusion that a voluntary dismissal does not deprive a district court of jurisdiction over a Rule 11 motion and hold that an appellate court should review the district court’s decision in a Rule 11 proceeding for an abuse of discretion. As Rule 11 does not authorize a district court to award attorney’s fees incurred on appeal, we reverse that portion of the Court of Appeals’ judgment remanding the case to the district court for a determination of reasonable appellate expenses. For the foregoing reasons, the judgment of the court below is affirmed in part and reversed in part. It is so ordered. Because petitioner did not raise the argument that Rule 11 sanctions could only be imposed against the two attorneys who signed the complaint, see Pavelic & LeFlore v. Marvel Entertainment Group, 493 U. S. 120 (1989), either in the courts below or in its petition for certiorari here, we decline to consider it. See, e. g., Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U. S. 257 (1989). Justice Stevens, concurring in part and dissenting in part. Rule 11 and Rule 41(a)(1) are both designed to facilitate the just, speedy, and inexpensive determination of cases in federal court. Properly understood, the two Rules should work in conjunction to prevent the prosecution of needless or baseless lawsuits. Rule 11 requires the court to impose an “appropriate sanction” on a litigant who wastes judicial resources by filing a pleading that is not well grounded in fact and warranted by existing law or a good-faith argument for" } ]

[ { "docid": "10865141", "title": "", "text": "have known, based on non-public information in its possession, that it was not doing as well as previously anticipated and that its optimistic forecasts were unreasonable. After the district court dismissed Katz’ original and amended complaints for failure to state a claim, the defendants moved for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The district court granted the motion and ordered Katz and Harwood to pay the defendants’ costs and expenses, to the tune of $54,111.99. Katz appealed, and we vacated the sanction award because the district court had addressed only the first of the two theories upon which Katz had based his claim, and therefore we could not determine whether the district court had abused its discretion in imposing Rule 11 sanctions. Katz v. Household International, Inc., 36 F.3d 670 (7th Cir.1994). We directed the district court: (1) to clarify its award of sanctions as to Katz’ primary theory; (2) to address Katz’ second theory of securities fraud; and (3) to assess a sanction only in the amount of fees reasonably incurred in responding to sanctionable filings. On remand, the district court concluded that both theories were sanctionable because neither was reasonably grounded in fact or law. The court imposed sanctions in the same amount as previously awarded. Katz and his attorney again appeal the district court’s assessment of Rule 11 sanctions, as well as the amount of the sanctions. ANALYSIS The relevant version of Rule 11 requires a plaintiff to conduct a reasonable inquiry before filing a complaint to ensure it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. Fed.R.Civ.P. 11. We review the district court’s Rule 11 determination for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460, 110 L.Ed.2d 359 (1990). As in our earlier opinion, we note that even if we may not have reached the same result as the district court, that does not mean that the district court abused its discretion. See Katz, 36" }, { "docid": "7589389", "title": "", "text": "by their predecessors but not agreed to or assumed by them). We affirmed the summary judgment order, but we relied on the alternate theory that the plaintiff’s allegations were insufficient to establish the jurisdiction of the arbitrator either under the collective bargaining agreement or under the labor law doctrine of successorship as set forth in John Wiley & Sons, Inc. v. Livingston, (“Wiley\"), 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) and clarified in Howard Johnson Co., Inc. v. Hotel Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). The district court also granted the defendants’ motion for an award of attorneys’ fees against the union under Fed.R. Civ.P. 11. The court characterized the action as “frivolous” because a reasonable inquiry would have revealed that there was no basis for the union’s claim and because counsel for the union made no effort to support the allegations in opposition to the defendants’ motion for summary judgment. The union now appeals from the fee award, asserting that the claim constituted a good faith argument for the extension of the labor law doctrine of successorship and was therefore not frivolous. Our review of the imposition or denial of sanctions under Rule 11 is limited to determining whether the district court has abused its discretion. Gaiardo v. Ethyl Corp., 835 F.2d 479, 485 (3d Cir.1987). III. Federal Rule of Civil Procedure 11 provides in pertinent part: The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The standard for testing conduct under Rule 11 is reasonableness under the circumstances. Gaiardo at 482; Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535," }, { "docid": "3570701", "title": "", "text": "of judicial resources). Had the parties in the case before us simply hired an arbitrator, particularly one who knew about landscaping, to walk through Hollingsworth’s garden, and to listen to the stories of both sides, the dispute would likely have found a quicker, and certainly a cheaper, resolution. Of course, the law in Maine does not require the parties to have hired an arbitrator in this case. And the federal courts are legally open to out-of-state defendants, who, like Hollings-worth, seek removal. Yet, in such circumstances, it seems “unjust” for a winning plaintiff to see his judgment disappear because his opponent brings a meritless appeal; and we believe we can take that fact into account in determining what “damages” are “just.” See Coghlan, 852 F.2d at 809 (right to appeal does not justify meritless appeal); State of Wisconsin v. Glick, 782 F.2d 670, 673-74 (7th Cir.1986) (awarding Rule 38 damages for meritless removal to federal court and appeal of lower court’s rejection of removal). Second, a review of the litigation indicates that Hollingsworth indeed appears to have used the procedural means available to him to draw out the proceedings. When, for example, Warren sued Hollingsworth, Hollingsworth filed a third party complaint, seeking indemnification from Warren’s owner as an individual, and Hollingsworth also brought his own suit against the owners of Warren and Applewood as individuals, even though it was clear that Hollings-worth did business with them as representatives of their respective corporations. Further, Hollingsworth interposed various defenses based on the fact that a trust owned the land on which he built his house; defenses that argue the landscapers should have sued the trusts. We do not say that in doing so, Hollingsworth necessarily violated Fed.R.Civ.P. 11. But, in considering the “justice” of awarding attorney’s fees, we believe that the assertion of these coun-tersuits and defenses shows that Hollings-worth’s aim was to complicate and drag out, and likely to add to the costs of resolving, a simple dispute about the quality of a garden wall and a lawn. See Natasha, 763 F.2d at 471-72 (problem of the recalcitrant defendant). Third, Hollingsworth’s" }, { "docid": "22179787", "title": "", "text": "the jury’s verdict must stand.” Runge v. Lee, 441 F.2d 579 (9th Cir.1971). Judgment notwithstanding the verdict (JNOY) is proper when the jury verdict is not supported by substantial evidence. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1026 (9th Cir.1981). Denial of JNOV is inappropriate, and therefore must be reversed, when it is clear that the evidence and its inferences cannot reasonably support judgment in favor of the opposing party. Maheu v. Hughes Tool Co., 569 F.2d 459, 464 (9th Cir.1977). Similarly, the grant or denial of either a motion for a new trial or a motion to amend the judgment must be reviewed on the basis of a determination of whether the district court abused its discretion. Inglis & Sons Baking, supra at 1027. It is well settled that an award of attorney’s fees under 15 U.S.C. § 1117 is within the- discretion of the court. Although attorney’s fees are to be awarded “only in exceptional circumstances and on evidence of fraud or bad faith,” such awards are reviewable only to determine if the trial court abused its discretion in granting or denying them. See Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir.1982); Runge, supra; Schmidt v. Zazzara, 544 F.2d 412 (9th Cir.1976). II DISCUSSION Many issues and sub-issues have been raised by the parties in their appeal of this complex matter. We consider each argument and additional facts pertinent thereto under separate headings. We begin our analysis by addressing the contentions set forth in the briefs filed by Fairbanks, Ajac, and Jacoby. A. TRADEMARK INFRINGEMENT 1. “Shift Kit” as a Trademark In response to special interrogatories, the jury found that “Shift Kit” was not a generic name, but was a descriptive term whose primary significance was to identify Transgo as “the exclusive manufacturing source of the goods to which the name is applied.” The jury also determined that the name Shift Kit “when first used by [Transgo] was arbitrary and identified [Transgo] as an exclusive manufacturing source.” Finally, the jury concluded that “Shift Kit” was Transgo’s trademark." }, { "docid": "18338355", "title": "", "text": "found that there remained issues of fact about the viability of a RICO claim under section 1962(c) of the statute. We certified five questions for interlocutory appeal to the court of appeals,' one of which was addressed by the circuit court. See Rodri-guen v. Banco Central, 917 F.2d 664 (1st Cir.1990). A third amended complaint was filed in order to state a claim under section 1962(c) of the RICO statute. The case finally went to trial on the section 1962(c) RICO claim on August 5, 1991. Following a seven-week trial, we granted defendants’ motion for a directed verdict. Rodriguez v. Banco Central, 777 F.Supp. 1043 (D.P.R.1991). The court of appeals affirmed the judgment, Rodriguez v. Banco Central Corp., 990 F.2d 7 (1st Cir.1993). Codefendants Banco Central, Jorge Colón Nevares, and Juan Martínez Echevarria have now filed motions requesting attorneys’ fees and sanctions pursuant to Fed.R.Civ.P. 11 and 18 U.S.C. § 1927. The defendants seek such a remedy against counsel alone, not against any individual plaintiffs. I. Legal Standards A. Fed.R.Civ.P. 11 The purpose of Rule 11 is to deter dilatory and abusive strategies in litigation, and to streamline the litigation process by decreasing frivolous pleadings. Cruz v. Savage, 896 F.2d 626, 630 (1st Cir.1990). Rule 11 allows sanctions if either (1) a pleading, motion or paper has been interposed for an improper purpose or (2) after reasonable investigation, a competent attorney could not form a reasonable belief that the pleading, motion or paper is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law. Lancellotti v. Fay, 909 F.2d 15, 19 (1st Cir.1990). Rule 11 sanctions do not require a finding of bad faith. Id. The test as to whether an attorney made a reasonable inquiry prior to signing a pleading is an objective standard of reasonableness under the circumstances at the time the attorney acted. Cruz, 896 F.2d at 631. Of course, in determining whether sanctions are appropriate, courts must avoid chilling the legal bar’s enthusiasm or creativity. Id. B. 28 U.S.C. § 1927 Defendants" }, { "docid": "3477", "title": "", "text": "latest) when the plaintiffs filed suit against True. To the extent Mitchell argues that the “license” is a bilateral contract, with the license supported by consideration and thus irrevocable, we simply cannot sustain the factual basis of the argument: there was no contract, implied or otherwise, between Mitchell and PEPL or the plaintiffs. None of the unique affirmative defenses can sustain the judgment. Mitchell and HNG remain in the case on remand. G. The Cross-Appeals The district court directed verdicts in favor of the bank defendants and Billy Mack Gideon. After trial, First National Bank in Albuquerque (“FNBA”) and Mr. Gideon filed motions requesting sanctions against the plaintiffs for bringing claims that were not well-founded in fact and law. At the end of its response to Mr. Gideon’s motion, the law firm that had represented the plaintiffs in the early part of these proceedings requested attorney’s fees for having to respond. The court denied both motions, sanctioning Gideon $500 for filing a “frivolous” Rule 11 motion. The court did not state whether the $500 sanction was based on Rule 11 or on equitable grounds. FNBA and Gideon appeal the denial of their Rule 11 motions, and Gideon appeals the sanction levied upon him by the district court. We doubt whether the district court’s denial of Rule 11 sanctions to FNBA and Gideon amounts to an abuse of discretion, but the propriety of the court’s award of sanctions against Mr. Gideon seems to us a much closer question. Because we must remand other portions of this case, however, we feel the best course is to vacate the sanction against Gideon and remand all the Rule 11 questions to the district court for reconsideration in light of our recent comprehensive opinion in Thomas v. Capital Security Services, Inc., 836 F.2d 866 (5th Cir.1988) (en banc). H. Conclusion For the reasons given, the jury’s verdict can stand to the time the plaintiffs first filed suit against the operator defendants. Past that point, some of the defendants’ liability is still up in the air. Our following comments are meant to assist the district court" }, { "docid": "13623604", "title": "", "text": "or any portion thereof, would only be set aside if \"clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). If an order is dispositive of a claim or defense of a party, unless the parties have consented under § 636(c), a magistrate judge may not enter an order. Instead, the magistrate judge must make a recommendation, which is subject to de novo review by the district court. Fed. R.Civ.P. 72(b); Bergeson v. Dilworth, 749 F.Supp. 1555, 1561 (D.Kan.1990). . Section 636(b)(1)(A) confers jurisdiction on magistrate judges to determine, with certain exceptions, pretrial matters that are pending before the court. Although the Rule 11 sanctions in the present case were based on pretrial conduct, namely, the failure to make reasonable inquiry into jurisdiction prior to filing the complaint, the Rule 11 motion was not a pending pretrial matter, because it was not made until after judgment on the underlying claim already had been entered and an appeal taken. Therefore, for this additional reason, although the district court would have had jurisdiction to enter an order imposing a post-judgment award of sanctions, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 2455-56, 110 L.Ed.2d 359 (1990), the magistrate judge did not. . Rule 11 monetary sanctions can be considerable. See, e.g., Akin v. Q-L Investments, Inc., 959 F.2d 521, 534-35 (5th Cir.1992) (noting that Rule 11 attorneys’ fees awards can reach tens and even hundreds of thousands of dollars and remanding case to the district court for specific factual findings concerning whether sanction imposed was least severe one adequate to accomplish the purposes of Rule 11); Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir.1991) (upholding sanctions of over $1,000,000 under Rule 11 and 28 U.S.C. § 1927), cert. denied, Christic Inst. v. Hull, — U.S. -, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992) and petition for cert. filed (June 25, 1992) and petition for cert. filed (June 26, 1992); Crookham v. Crookham, 914 F.2d 1027, 1030 (8th Cir.1990) (upholding $10,000 sanction under Rule 11); Searcy v. Houston Lighting & Power Co., 907 F.2d 562, 565 (5th Cir.) [per" }, { "docid": "19796334", "title": "", "text": "behavior as a party to the litigation, and closeness of the case. Damages, slip op. at 19-20, 2009 WL 886514, at *11. Thus, the court exercised its discretion by only doubling the jury’s damages award, and not tripling as it had the authority to do. Id. at 20, *11. Based on the evidence, the district court did not abuse its discretion in awarding enhanced damages to Bard. Section 285 of Title 35 of the United States Code states that a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” Whether a case is exceptional and, thus, eligible for an award of attorneys’ fees requires the district court to first, make a factual determination of whether a case is exceptional and second, exercise its discretion to determine whether attorneys’ fees are appropriate. Cybor, 138 F.3d at 1460. The district court also found that there was sufficient basis for deeming this case exceptional based on the jury’s verdict of willfulness, the evidence supporting willfulness, and the extensive litigation history between the parties that Gore repeatedly lost yet continued to infringe. Damages, slip op. at 21-22, 2009 WL 886514, at *11-13. The court also determined that Gore argued contradictory positions on infringement throughout the litigation and relied on testimony that was not credible. Id. at 22-23, *12-13. Thus, the court concluded that this case was exceptional, justifying the exercise of its discretion in awarding of attorneys’ fees and costs. Based on the record, the district court did not abuse its discretion in awarding Bard attorneys’ fees and costs. The district court denied Bard’s request for a permanent injunction finding that it was in the public interest to allow competition in the medical device arena, but in lieu thereof granted Bard an ongoing royalty to compensate for Gore’s future infringement. Injunction, 2009 WL 920300, at *4-10; see eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) (permitting the denial of a permanent injunction if the public interest would be disserved). The court set a 12.5% to 20% royalty rate on Gore’s grafts depending" }, { "docid": "23169904", "title": "", "text": "tortious interference claims); United States v. Quintanilla, 2 F.3d 1469, 1479-80 & n. 13 (7th Cir.1993) (recognizing that trial court had ordered separate trial on RICO count and other fraud counts pertaining to an identifiable fraudulent scheme); First Nat’l Bank and Trust Co. v. Hollingsworth, 931 F.2d 1295, 1301 (8th Cir.1991) (noting that RICO case had been tried separately from fraudulent conveyance issues); cf. Laitram Corp. v. Hewlett-Packard Co., 791 F.Supp. 113, 117-118 (E.D.La.1992) (trifurcating complex patent trial into phases to diminish potential of jury confusion). Other courts have bifurcated distinct classes of predicate acts supporting the substantive RICO claim for separate disposition. E.g., United States v. Jenkins, 902 F.2d 459, 461 (6th Cir.1990) (observing that district court had severed mail fraud predicate acts from substantive RICO claim and bribery and extortion predicate acts); cf. United States v. Coonan, 839 F.2d 886, 889-90 (2d Cir.1988) (suggesting a bifurcation procedure to be used at the charge/deliberation stage in which jury is first asked to determine which, if any, of the charged predicate acts were committed and, only if two or more are found, to consider their relatedness for purposes of a racketeering pattern). Conkling’s RICO case is similarly complex. In all, Conkling has alleged during the course of this litigation at least 25 predicate acts, including the derivative claims for diminution in value of Nichols and its affiliates. Ten of these were adjudicated in the pre-trial summary judgment. The trial court apparently considered the predicate acts relating to Merit, Merit Environmental, and Gymeo not to be predicate acts as a matter of law. See below infra at section II.B.3.b. The Harmony dilution claim was conceded by the parties to involve fact issues, but, as discussed above, its viability under RICO depended upon the existence of at least one other predicate act. The remaining predicate acts were dependent upon a finding of fraud in the 1963 agreement, an issue which was tried to the jury and found against Con-kling. It is clear to us that the court below had a specific purpose in paring down the issues for jury resolution to the" }, { "docid": "3570702", "title": "", "text": "to have used the procedural means available to him to draw out the proceedings. When, for example, Warren sued Hollingsworth, Hollingsworth filed a third party complaint, seeking indemnification from Warren’s owner as an individual, and Hollingsworth also brought his own suit against the owners of Warren and Applewood as individuals, even though it was clear that Hollings-worth did business with them as representatives of their respective corporations. Further, Hollingsworth interposed various defenses based on the fact that a trust owned the land on which he built his house; defenses that argue the landscapers should have sued the trusts. We do not say that in doing so, Hollingsworth necessarily violated Fed.R.Civ.P. 11. But, in considering the “justice” of awarding attorney’s fees, we believe that the assertion of these coun-tersuits and defenses shows that Hollings-worth’s aim was to complicate and drag out, and likely to add to the costs of resolving, a simple dispute about the quality of a garden wall and a lawn. See Natasha, 763 F.2d at 471-72 (problem of the recalcitrant defendant). Third, Hollingsworth’s appeal to this court was meritless. Although the factual dispute, as tried in the court below, was not particularly one-sided, this appeal is frivolous. Though we had to read the record to determine whether the judge’s findings were adequate and whether the evidence supported them, once we did so, given the broad scope of legal power that the law gives to district courts to find facts and to describe those findings, we must conclude that the legal questions, for an appellate court, were “perfunctory.” Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 74 (1st Cir.), cert. denied, 469 U.S. 1018, 105 S.Ct. 433, 83 L.Ed.2d 359 (1984). Much of Holl-ingsworth’s appeal was directed at what are obviously decisions vested firmly in the sound discretion of the district court, including that court’s assessments of the facts and the credibility of the witnesses. See District No. 8, International Ass’n of Machinists and Aerospace Workers v. Clearing, 807 F.2d 618, 622-23 (7th Cir.1986) (awarding Rule 38 damages where appellant challenged credibility findings of trial court in contract" }, { "docid": "7816602", "title": "", "text": "their complaint, we cannot say that the district court abused its discretion in refusing them leave to amend. See Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir.1993). II. RULE 11 SANCTIONS The district court ordered the plaintiffs to pay Rule 11 sanctions of $32,885.15, equal to the Bank’s costs and attorneys’ fees incurred in defending the federal action. The plaintiffs contend that the sanctions award was unwarranted and excessive, that they did not receive adequate notice that sanctions were being considered against them, and that it was not them but their attorneys, if anyone, who should have been sanctioned. All aspects of the district court’s Rule 11 determination are reviewed for abuse of discretion, which is shown if the district court “based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartman Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990); Coffey v. Healthtrust, Inc., 955 F.2d 1388, 1393 (10th Cir.1992). We vacate the sanctions order for reasons explained below. A. Grounds for Sanctions Rule 11, as applicable to the plaintiffs’ amended complaint, provides in part: The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Fed.R.Civ.P. 11 (prior to amend, effective Dec. 1, 1993). The district court found two reasons for Rule 11 sanctions against the plaintiffs: (1) there was no reasonable, good faith basis for attempting to sue under RICO, and (2) the court viewed the federal complaint as having been filed vexatiously, in bad faith, for the purposes of harassing the defendants with duplicative" }, { "docid": "17468801", "title": "", "text": "any improper purpose.” Fed.R.Civ.P. 11. As we recently held, a court shall impose Rule 11 sanctions when: (1) a reasonable inquiry into the basis for a pleading has not been made; (2) under existing precedents there is no chance of success; and (3) no reasonable argument has been advanced to extend, modify or reverse the law as it stands. International Shipping Co. v. Hydra Offshore, Inc., 875 F.2d 388, 390 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989). Here, Investors did not file its summary judgment papers for any improper purpose; its motion was based on a good faith belief that it was entitled to indemnification from Dorinco pursuant to the Agreement. While Investors’ reference to Dorinco’s offer of judgment may have violated Fed.R.Civ.P. 68, which provides that unaccepted offers of judgment are inadmissible except in a proceeding to determine costs, this reference did not alter the fact that the summary judgment motion was itself based on a good faith claim under existing law. Because Investors’ summary judgment motion was not interposed for any improper purpose, sanctions under Rule 11 were not appropriate. As with any evidentiary error, the proper remedy for Investors’ action was simply to exclude the improper reference from the record. Dorinco relies on Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324 (9th Cir.1980), and Chan Wing Cheung v. Hamilton, 298 F.2d 459 (1st Cir.1962), for the proposition that “[ijnclusion of inadmissible information ... in a motion for summary judgment ... must constitute a per se violation of Rule 11.” Brief for Appellee at 49. However, both of these cases simply stand for the proposition that “only admissible evidence may properly be considered by a trial court in granting summary judgment.” 622 F.2d at 1335 n. 9; see also 298 F.2d at 460. Neither case has anything at all to do with the issue of Rule 11 sanctions. The judgments of the district court are affirmed. . The court also dismissed Investors’ unilateral mistake claim, based on Investors’ failure to include specific allegations of fraud or misrepresentation in its complaint." }, { "docid": "1540131", "title": "", "text": "to the SBA because of the SBA’s guarantee of the SBA Loan. The record does not support a claim that Robey or Western failed to adequately protect the value of Lambert’s receivables. The UCC requires a creditor to act in a commercially reasonable manner regarding the storage, sale, or disposition of the collateral, and the fact that Robey released the accounts to the SBA is not evidence of failure to protect their value. If anything, Lambert would have a complaint with the SBA’s handling of the accounts. We find no genuine issue of material fact regarding Lambert’s breach of the note under the Credit and hold that Western was correctly granted summary judgment. D. Western’s Motion for Rule 11 Sanctions Western moved for Rule 11 sanctions against Lambert’s attorney for the filing of the amended complaint and, in particular, the RICO claim. The district court denied the motion. On appeal, Western maintains that a RICO allegation is a very serious claim that can taint the reputation of the accused and should not be brought without careful research of the applicable law and adequate discovery of the factual basis for the claim. We have held that “in determining whether a violation of Rule 11 has occurred, the district court must apply an ‘objective reasonableness’ standard.” N.A. A. C.P. — Special Contribution Fund v. Atkins, 908 F.2d 336, 339 (8th Cir.1990) (quoting O’Connell v. Champion Int’l Corp., 812 F.2d 393, 395 (8th Cir.1987)). We review a district court’s decision-to grant or deny sanctions only upon an abuse of discretion. E.g., Crookham v. Crookham, 914 F.2d 1027, 1029 (8th Cir.1990). Although we cannot say that we would not have imposed sanctions had we been sitting as the district court, we find no abuse of the district court’s discretion in denying Western’s request for sanctions. III. CONCLUSION This case is a contract dispute and is resolved by the unambiguous terms of the agreements. For all the reasons already discussed, we find no genuine issues of material fact as to any of Lambert’s claims in its amended complaint and, therefore, affirm the district court’s grant" }, { "docid": "13326159", "title": "", "text": "to prove that Beltz had taken a substantial step toward the production of methamphetamine, the government sought to demonstrate a connection between him and the seized materials. Thompson’s testimony as to Beltz’s prior use of those materials made this connection and was thus direct evidence of a charged offense. Thompson’s testimony would also have been admissible as other crimes evidence, for Beltz’s prior participation in the production of methamphetamine at his residence is relevant to a material issue in the case— his present knowledge and intent in possessing pseudoephedrine and manufacturing equipment. See United States v. Hawthorne, 235 F.3d 400, 404 (8th Cir.2000). The district court did not abuse its discretion in allowing Thompson’s testimony. Beltz contends finally that the district court erred by not granting his motion for a judgment of acquittal on the basis of insufficient evidence to support the jury’s finding of attempt. Our review of the sufficiency of evidence is limited. “We will reverse a denial of a motion for acquittal only if, after viewing the evidence in the light most favorable to the jury’s verdict, giving the government the benefit of all reasonable inferences that may be drawn from the evidence, no construction of the evidence will support the jury’s verdict.” United States v. Hollingsworth, 257 F.3d 871, 878 (8th Cir.2001), cert. denied, 534 U.S. 1100, 122 S.Ct. 856, 151 L.Ed.2d 732 (2002); United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986) (‘We will.. .reverse only if a reasonable jury could not have found guilt beyond a reasonable doubt.”). In order to prove an attempt to manufacture methamphetamine, the government was required to demonstrate that Beltz intentionally engaged in conduct constituting a substantial step toward the production of methamphetamine. Hollingsworth, 257 F.3d at 878. Considering the evidence presented at trial, a reasonable jury could have found Beltz guilty of attempting to produce methamphetamine beyond a reasonable doubt. See, e.g., id. at 878-79 (sufficient evidence of attempt to manufacture methamphetamine where defendant purchased a single precursor chemical while residing with others at a residence containing a nonoperational methamphetamine lab); United States v. Mazzella, 768 F.2d" }, { "docid": "3570695", "title": "", "text": "Hollingsworth, while presenting this witness to testify on a key, hotly disputed point, had not designated him as an expert witness (or as any kind of witness) in accordance with a pretrial order requiring such designation by October 1, 1987, nor did he list Struck on the witness list provided opposing counsel a week or two before trial, nor did he try to add Struck to that list. Struck’s appearance, suddenly on the last day of trial, surprised opposing counsel and surprised the court. Opposing counsel had had no opportunity to submit interrogatories or to depose Struck; and the court could not understand why Hollingsworth had not introduced Struck during his case in chief, rather than saving him for rebuttal. Hollingsworth was unable to offer any response to these concerns. The power to impose sanctions for violations of discovery rules and pretrial orders lies in the district court, not this court. See Fed.R.Civ.P. 16; Fed.R.Civ.P. 37(b)(2). The Federal Rules specifically authorize, as a sanction for such violations, an order “prohibiting” the “disobedient party” from “introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(B). We will reverse such a sanction only for abuse of discretion. Johnson v. H.K. Webster, Inc., 775 F.2d 1, 8 (1st Cir.1985). Given (i) the surprise involved, (ii) the impracticality of stopping the trial (being conducted before a judge from another jurisdiction sitting by designation and as trier of fact) just before its close to permit time for appellees’ counsel to conduct discovery of Struck and prepare responses (possibly including new witnesses of their own), (iii) what, from the record’s silence as to reasons and our inability to perceive any, seems like bad faith on Hollingsworth’s part, see Lirette v. Popich Brothers Water Transport, Inc., 660 F.2d 142, 145 (5th Cir.1981) (counsel’s inability to explain failure to comply with pretrial order implies bad faith), and (iv) the district court’s need to enforce compliance with its discovery orders, we can find no abuse of the district court’s exercise of its lawful sanctioning powers. Both Warren and Applewood argue that this appeal is frivolous and ask for double costs and attorney’s" }, { "docid": "23562112", "title": "", "text": "would not be productive does not change our conclusion. When a juror clearly discloses to the district court that she disagrees with the rest of the jury and that she cannot return a different verdict, as Juror No. 1 disclosed here, the district court cannot give a supplemental instruction instructing the jury to continue deliberating. Ajiboye, 961 F.2d at 894; Sae-Chua, 725 F.2d at 532. Accordingly, the district court abused its discretion in denying the appellants’ motion for a mistrial. Ill We REVERSE the judgment of the district court and REMAND for a new trial. . Hollingsworth pleaded guilty to a single count of carrying a firearm during a drug crime and crime of violence, in exchange for his testimony at trial and for dismissal of the remaining two counts. . At trial, Williams denied knowing anything about how to deal drugs and contended that he had been introduced to Tony in June 2002 because Williams needed money and Tony could provide him a loan. Many of the conversations between Williams and Tony were taped, though conversations describing the drug deals other than the Jamaican marijuana deal, described infra, were destroyed prior to trial. . Hollingsworth, who pleaded guilty to a reduced set of charges, was the third man who drove the guns down but did not know the plan. . Portions of audiotape 9A, discussed in more depth infra, recorded one side of Penate’s conversation with the other agents after he left the first motel. In a disputed portion of that tape, Penate referred to “one of those two other dudes who didn’t nod.’’ . Because we conclude that the district court committed reversible error by giving an improper Allen charge, we need not reach the claims that the district court erred in failing to give a limiting instruction on Hollings-worth’s guilty plea, in failing to instruct the jury properly on the elements of the crime underlying the conspiracy charges, or in improperly admitting co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E). . We review de novo a motion for a judgment of acquittal under Federal Rule of Criminal" }, { "docid": "2462341", "title": "", "text": "problems and incapacities caused by the injury to his left arm and described in general terms the reasons for his inability to perform the tasks associated with the positions of seam-er operator and end packer. In addition, the medical reports of Dr. Mclvar and Dr. Hanberry, taken together with plaintiffs own testimony, give rise to conflicting inferences concerning plaintiffs ability to perform the available jobs offered to him at the plant. Accordingly, the several motions for a directed verdict and judgment notwithstanding the verdict were properly denied. C. The Refusal to Impose Rule 11 Sanctions Appellate review of orders pertaining to sanctions under Fed.R.Civ.P. 11 may require a number of separate inquiries. See Golden Eagle Distributing Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir.1986); U.S. v. National Medical Enterprises, Inc., 792 F.2d 906, 910-11 (9th Cir.1986); Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986). If the facts relied upon by the district court to establish a violation of the Rule are disputed on appeal, we review factual determinations of the district court under a clearly erroneous standard. Golden Eagle, 801 F.2d at 1538. If the legal conclusion of the district court that the facts constitute a violation of the Rule is disputed, we review that legal conclusion de novo. Id. Finally, if the appropriateness of the sanction imposed is challenged, we review the sanctions under an abuse of discretion standard. Id. Prior to its 1983 amendment, Rule 11 was interpreted to require subjective bad faith by the signing attorney to warrant imposition of sanctions. Id. at 1536. The text of the present rule represents an intentional abandonment of the subjective focus of its predecessor in favor of an objective one. Id. The certificate now tests the knowledge of the signing attorney by a “reasonableness under the circumstances” standard. Id. Thus, counsel can no longer avoid the sting of Rule 11 sanctions by operating under the guise of a pure heart and empty head. Rule 11 now requires that sanctions “shall be assessed if the paper filed in the district court and signed by an attorney" }, { "docid": "1627152", "title": "", "text": "120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not require such a result, and we decline to extend Apprendi to encompass Fellers’s situation. As we held in United States v. Hollingsworth, 257 F.3d 871, 878 (8th Cir.2001), it is “proper for the sentencing judge to then make more exact calculations for purposes of computing the offense level under the guidelines and determining where the sentence will actually fall within the statutory range determined by the jury’s verdict.” Fellers contends that the district court erred in finding that his criminal history category did not adequately reflect the seriousness of his past criminal conduct. We review the district court’s departure from the Sentencing Guidelines for an abuse of discretion. United States v. Payne, 940 F.2d 286, 293 (8th Cir.1991). The court may depart upward if “reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3. Without recounting the details of Fellers’s past criminal conduct, we conclude that the district court did not abuse its discretion in determining that an upward departure was warranted. Fellers challenges district court’s denial of his motion for downward departure. So long as a district court is aware of its authority to depart downward, as.it clearly was in this case, its refusal to exercise its discretion to depart from the applicable guideline range is unreviewable, United States v. Evidente, 894 F.2d 1000, 1004-05 (8th Cir.1990), and thus Fellers’s challenge fails. Finally, Fellers argues that the district court erred in denying him a two-level reduction as a minor participant. “[W]hether a defendant qualifies for a minor participant reduction is a question of fact, the determination of which we review for clear error.” United States v. Alverez, 235 F.3d 1086, 1090 (8th Cir.2000) (quoting United States v. Hale, 1 F.3d 691, 694 (8th Cir.1993)). Fellers argues that he was less culpable than other participants because the majority of the evidence showed him as receiving the drugs, not distributing them. There was sufficient evidence indicating that Fellers had" }, { "docid": "3383937", "title": "", "text": "a franchise agreement that requires the parties to arbitrate claims arising under the agreement. Dis pleased with the relationship, franchisees represented by Duree have repeatedly filed suits against DAI in various state courts. In response, DAI has served these parties with written demands for arbitration, pursuant to the franchise agreement. See, e.g., Distajo II, 107 F.3d at 128, 132; Jabush, 89 F.3d at 110-11. In prior cases, when the franchisees refused to arbitrate, DAI responded by commencing actions to compel arbitration against them in federal district court in Connecticut, pursuant to the Federal Arbitration Act, 9 U.S.C. § 4. DAI named its adversaries as parties, and served them with process. See Fed.R.Civ.P. 4. The court had subject-matter jurisdiction under 28 U.S.C. § 1332 because DAI is a citizen of Florida and the franchisees it sued are not. The court had personal jurisdiction over the franchisees because each of them had agreed to arbitrate in Connecticut. See Stuart, 85 F.3d at 979. In response to DAI’s actions, the franchisees made an array of arguments, including lack of federal jurisdiction and unen-forceability of the arbitration clause on various grounds. In these past cases, the district court compelled arbitration and enjoined the party-defendants who had been served with process from prosecuting their disputes in the state courts. In several instances, the court’s injunction was directed not only against the defendant franchisees, but also against “their agents, representatives, attorneys, and any one acting on their behalf.” E.g., Distajo, 944 F.Supp. at 1010. Except in a few instances resulting in reversals on res judicata grounds, see Distajo I, 66 F.3d at 458, either the franchisees declined to appeal, or we eventually affirmed the orders compelling arbitration and the injunctions. See, e.g., Dis-tajo II, 107 F.3d at 135-36; Stuart, 85 F.3d at 977, 985. This appeal arises from an order issued by the district court in three consolidated cases — Hollingsworth, Jabush, and Sharma. In Doctor’s Assocs., Inc. v. Hollingsworth (“Hollingsworth ”), DAI filed a petition to compel arbitration and enjoin state court litigation against 31 Subway franchisees who had filed an as-yet uncertified class action" }, { "docid": "1540132", "title": "", "text": "careful research of the applicable law and adequate discovery of the factual basis for the claim. We have held that “in determining whether a violation of Rule 11 has occurred, the district court must apply an ‘objective reasonableness’ standard.” N.A. A. C.P. — Special Contribution Fund v. Atkins, 908 F.2d 336, 339 (8th Cir.1990) (quoting O’Connell v. Champion Int’l Corp., 812 F.2d 393, 395 (8th Cir.1987)). We review a district court’s decision-to grant or deny sanctions only upon an abuse of discretion. E.g., Crookham v. Crookham, 914 F.2d 1027, 1029 (8th Cir.1990). Although we cannot say that we would not have imposed sanctions had we been sitting as the district court, we find no abuse of the district court’s discretion in denying Western’s request for sanctions. III. CONCLUSION This case is a contract dispute and is resolved by the unambiguous terms of the agreements. For all the reasons already discussed, we find no genuine issues of material fact as to any of Lambert’s claims in its amended complaint and, therefore, affirm the district court’s grant of summary judgement to Western and Robey on all counts of the amended complaint and the judgement for Western on Count II of its counterclaim. Further, because we find that the district court did not abuse its discretion in denying Western’s request for Rule 11 sanctions, we affirm its denial of Western’s motion. . The Honorable William G. Cambridge, United States District Judge for the District of Nebraska. . The SBA participated in the loan by guaranteeing 62% of the principal amount. To effect the SBA participation, Lambert executed an SBA Note in the amount of $350,000. . Western held the first position and L & G Properties continued to hold the second mortgage on the property. . The essential elements of a § 1962(c) action are \"(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex, Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (footnote omitted). . \"Suppose a hoodlum were to sell 'insurance' to a neighborhood’s storekeepers to cover" } ]

[ { "docid": "22699302", "title": "", "text": "judgment of dismissal was entered in this case below. See n. 1, supra. Section 2107 provides that “[ejxcept as otherwise provided in this section, no appeal shall bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree.” See also Fed. Rule App. Proc. 4 (a). Nor would strict compliance with the separate-judgment requirement aid in the court of appeals’ determination of whether the decision of the District Court was “final” for purposes of § 1291. Even if a separate judgment is filed, the courts of appeals must still determine whether the district court intended the judgment to represent the final decision in the case. Cf. United States v. Hark, 320 U. S. 531 (1944). While our decision in Indrelunas is consistent with the result we reach today, the beginning paragraph of Indrelunas could be read as holding that a separate judgment must be filed in compliance with Rule 58 before a decision is “final” for purposes of § 1291. In Indrelunas, we noted that since both parties conceded “that the jurisdiction of the Court of Appeals was based on the provisions of 28 U. S. C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals’ decision depends on whether the District Court’s judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the ‘entry of judgment’ as that term is used in Fed. Rule Civ. Proc. 58.” 411 U. S., at 216. To the extent the above passage is inconsistent with our decision today, we disavow it." } ]

[ { "docid": "18780350", "title": "", "text": "on August 13, 1984 — within 60 days of the June 12th decision but after the 60-day period following the original entry of judgment. Rule 4 of the Federal Rules of Appellate Procedure provides that a notice of appeal must be filed within 60 days after entry of the “judgment” of the District Court. Fed. R.App.P. 4(a)(1). Rule 4(a)(4), however, provides that certain motions may toll the 60-day appeal period. Our first task, then, is to determine when the District Court’s judgment was entered. If the judgment was entered on April 27th or on May 4th, the notice of appeal was untimely and this court may only entertain the appeal if the NRC’s motion tolled the appeal period. A. Appellants contend that the judgment of the District Court was the memorandum opinion issued on May 4th, rather than the April 27 th order. As a result, they argue, the NRC motion on May 14th was a timely motion under Federal Rule of Civil Procedure 59(e) to amend the judgment which tolled the appeal period. Rule 4(a)(6) provides that a judgment is entered within the meaning of Rule 4(a) “when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.” Fed.R.App.P. 4(a)(6). Fed.R.Civ.P. 58 requires that the “judgment” of a District Court be set forth in a separate document. As the notes of the Advisory Committee on Rules explain, the purpose of this requirement is to remove any doubt about when the time for filing a notice of appeal begins to run. See Notes of Advisory Committee — 1963 Amendments. See also United States v. Indrelunas, 411 U.S. 216, 220, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973) (purpose of the rule to remove uncertainty over appeal period); Diamond v. McKenzie, 770 F.2d 225, 230 n. 10 (D.C.Cir.1985) (same). As the Supreme Court noted in Indrelunas, this test is to be applied mechanically “in order to avoid new uncertainties as to the date on which a judgment is entered.” 411 U.S. at 222, 93 S.Ct. at 1565. Rule 79(a) requires that the clerk of" }, { "docid": "22058268", "title": "", "text": "357 (1978) (per curiam). The LJCC’s position, however, is that when a litigant signals that she understands that a final judgment has been filed despite the order’s failure to comply with the separate-document rule, she must file an appeal within 30 days of the faulty judgment or lose her ability to appeal altogether. This is a dubious argument. See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam) (although the Government had clearly signaled its understanding that a stipulation for damages was the final judgment, the separate-document provision must be “mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered” and therefore the Government’s appeal was timely); Gregson & Assocs. Architects v. Gov’t of the Virgin Islands, 675 F.2d 589 (3d Cir.1982) (per curiam) (holding appeal was timely although the appellant admitted it had understood a faulty judgment to be final); Fed. RApp. P. 4(a) advisory committee notes (2002 amendments) (“[i]n drafting new Rule 4(a)(7)(B) [which provides that appeals filed before the lapse of the 150 days that convert a faulty judgment into a final one are valid], the Committee has been careful to avoid phrases such as ‘otherwise timely appeal’ that might imply an endorsement” of the rule in a minority of the circuits that appellants who waive the separate-document requirement must file an appeal within 30 days of the entry of the “faulty” judgment). Even if it were possible to waive the protections of the separate-document rule, LeBoon did not do so here. Waiver is “the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). It is all too obvious from LeBoon’s pleadings that she was unaware she could avail herself of an additional 150 days because of the formal inadequacy of the February 17 Order. At most, she could have forfeited her right, see id.; we decline to hold, however, that this court is deprived of jurisdiction over an appeal through a litigant’s unknowing forfeiture of the" }, { "docid": "21014069", "title": "", "text": "or b) if Appellant filed a notice of appeal within ten days of the passing of the deadline for meeting the conditions, such notices would have been timely and the appeal would properly have been before the district court. See Festa, 905 F.2d at 37; Cleary Bros., 176 F.2d at 372. On the other hand, Appellant was equally free to wait for the bankruptcy court to enter a final (Rule 58) judgment, no matter how long it takes for the bankruptcy court to enter that document. And any notice of appeal filed within ten days of that entry would be timely. See Indrelunas, 411 U.S. at 220-222, 93 S.Ct. 1562; Cooper v. Town of East Hampton, 83 F.3d 31, 34 (2d Cir.1996) (“A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the document” (quoting In re Kilgus, 811 F.2d 1112, 1117 (7th Cir.1987))). This case falls between those two categories; it might seem to be too late, under the logic of Festa and Cleary, for Appellant’s notice of appeal to be effective. But there is, as yet, no Rule 58 judgment from which to appeal, and hence there is no outstanding deadline which, if not met, would bar Appellant’s right to review. Nonetheless, keeping in mind the Supreme Court’s admonition that we should avoid spinning wheels to no practical purpose, see Mallis, 435 U.S. at 384-85, 98 S.Ct. 1117, we conclude that the district court can simply assert jurisdiction on the basis of Bogaerts’s .present notice of appeal, and proceed to consider the merits of that appeal. As a matter of administrative orderliness, however, the district court may pre fer first to order the bankruptcy court to enter a final judgment in the underlying proceeding, from which Bogaerts may then, if he chooses, appeal to the district court by filing a notice of appeal within the appropriate time limit. We leave the choice between these two approaches to the sound discretion of the district court. IV. Because the bankruptcy court did not enter a final judgment pursuant to Rule 58," }, { "docid": "23037984", "title": "", "text": "58 was amended to require that a judgment was to be effective only when set forth on a separate document. Id. at 220, 93 S.Ct. at 1564 (citations omitted). The thirty day time period in which to commence an appeal does not accrue until the district court has filed an entry of judgment set forth on a separate document in the civil docket. The Court explicitly rejected the notion of “case-by-case tailoring of the ‘separate document’ provision.” Id. at 221, 93 S.Ct. at 1565. See also Cloyd v. Richardson, 510 F.2d 485 (6th Cir.1975) (per curiam) (strict compliance with the requirements of Rule 58 and 79(a) is mandatory); In re Kilgus (Reichman v. United States Fire Insurance Co.), 811 F.2d 1112, 1117 (7th Cir.1987) (“The more mechanical the application of a jurisdictional rule, the better.”). The Trustee, however, argued that the Supreme Court’s decision in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), compels this court to conclude that Reid has waived compliance with the separate document rule. The Trustee has misinterpreted Mal-lis. In Mallis, the district court had, in violation of Rule 58, failed to set forth on a separate document an entry of judgment. The appellant, however, had filed an appeal from the district court’s memorandum within thirty days on the assumption that there had been compliance with Rule 58 and 79(a) by the district court. The Supreme Court concluded that it and the court of appeals had jurisdiction despite the technical defect of the separate document requirement. The Supreme Court stated: In United States v. Indrelunas, we recognized that the separate-document rule must be “mechanically applied” in determining whether an appeal is timely. Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. The need for certainty as to the timeliness of an appeal, however, should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered. As Professor Moore notes, if the only obstacle to" }, { "docid": "23037983", "title": "", "text": "79(a), in turn, mandates that all orders shall be entered by the clerk of courts on the civil docket book corresponding to the case number assigned to such lawsuit. Addressing the standards imposed by Rules 58 and 79(a), this court’s attention is directed to the pronouncements of the Supreme Court in United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973)(per curiam), wherein it stated that Rules 58 and 79(a), which mandate a separate entry of judgment to be recorded in the lawsuit’s corresponding civil docket, must be “mechanically” applied to avoid uncertainty as to when a judgment becomes effective for appellate review. The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment [of Rule 58]. Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty. To eliminate these uncertainties, which spawned protracted litigation over a technical procedural matter, Rule 58 was amended to require that a judgment was to be effective only when set forth on a separate document. Id. at 220, 93 S.Ct. at 1564 (citations omitted). The thirty day time period in which to commence an appeal does not accrue until the district court has filed an entry of judgment set forth on a separate document in the civil docket. The Court explicitly rejected the notion of “case-by-case tailoring of the ‘separate document’ provision.” Id. at 221, 93 S.Ct. at 1565. See also Cloyd v. Richardson, 510 F.2d 485 (6th Cir.1975) (per curiam) (strict compliance with the requirements of Rule 58 and 79(a) is mandatory); In re Kilgus (Reichman v. United States Fire Insurance Co.), 811 F.2d 1112, 1117 (7th Cir.1987) (“The more mechanical the application of a jurisdictional rule, the better.”). The Trustee, however, argued that the Supreme Court’s decision in Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), compels this court to conclude that Reid has waived compliance with the separate" }, { "docid": "639291", "title": "", "text": "the time within which an appeal must be taken, but it also clarifies the timing of post-trial motions. Rule 58(a) provides “[ejvery judgment and amended judgment must be set forth on a separate document” except for those disposing of certain motions. If a separate document is required, but no separate document is issued, a court must deem the judgment’s date of entry as 150 days after its entry in the civil docket. Fed.R.Civ.P. 58(b). We mechanically apply Rule 58 to prevent uncertainties as to the date on which a judgment is entered, see United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam); In re Cendant Corp. Sec. Litig., 454 F.3d 235, 243-44 (3d Cir.2006), because “[d]etermining the date of entry is critical for motion practice under the Federal Rules of Civil Procedure[ ] and for the timely filing of a notice of appeal.” United States v. Fiorelli, 337 F.3d 282, 287 (3d Cir.2003) (footnote omitted). Metro argues Rule 58(a) does not require a separate document for a judgment to trigger the time period of a Rule 54(d) fees motion. The text of Rules 58 and 54 require that we reject this argument. Rule 58 addresses the “time of entry” for judgments for the “purposes of these rules” and Rule 54 requires motions for fees to be filed within 14 days after the “entry of judgment.” Rule 58 enumerates certain exceptions to its formalities, none of which are relevant here. Therefore, when an order does not comply with Rule 58, there is no immediate “entry of judgment” triggering the time period for Rule 54(d) motions. In such circumstances, the time period begins 150 days after entry of the order, as set forth in Rule 58(b). Accordingly, if the District Court’s December 14 summary judgment order is not a separate document, the time period for an application for fees provided by Rule 54(d) (and extended by D.N.J. L. Civ. R. 54.2) began to run 150 days after December 14. More specifically, if the December 14 order was not a separate document, the Fund’s motion" }, { "docid": "21014068", "title": "", "text": "could have entered a “tickler” marking as crucial the date on which the conditions were to have been fulfilled. And if Appellant did not comply with the conditions on that date, the clerk could then have entered a judgment pursuant to Rule 58 without any further direction from the court. In addition, PNL, for whom finality of the decision was perhaps of greatest importance, could easily have asked the court on August 17, 2000, to enter a final (Rule 58) judgment. See Otis, 29 F.3d at 1167 (“Victorious litigants wishing to write finis to the case would do well to ensure that the district court adheres to Rule 58.”). III. We note that none of the previous cases address the precise circumstances of the case before us. On the one hand, it is beyond question that, notwithstanding the bankruptcy court’s failure to enter a separate Rule 58 judgment, a) if time remained for Appellant to meet the conditions set forth in the bankruptcy court’s August 7, 2000, order, but Appellant waived that time and appealed, or b) if Appellant filed a notice of appeal within ten days of the passing of the deadline for meeting the conditions, such notices would have been timely and the appeal would properly have been before the district court. See Festa, 905 F.2d at 37; Cleary Bros., 176 F.2d at 372. On the other hand, Appellant was equally free to wait for the bankruptcy court to enter a final (Rule 58) judgment, no matter how long it takes for the bankruptcy court to enter that document. And any notice of appeal filed within ten days of that entry would be timely. See Indrelunas, 411 U.S. at 220-222, 93 S.Ct. 1562; Cooper v. Town of East Hampton, 83 F.3d 31, 34 (2d Cir.1996) (“A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the document” (quoting In re Kilgus, 811 F.2d 1112, 1117 (7th Cir.1987))). This case falls between those two categories; it might seem to be too late, under the logic of Festa and Cleary, for" }, { "docid": "23037982", "title": "", "text": "order of June 30, 1986 within the thirty-day time frame mandated by Federal Rules of Appellate Procedure 4(a)(1). The Trustee urged that Reid’s appeal was filed on November 25, 1987, sixteen months after the June 30, 1986 order. Consequently, the Trustee in his appellate brief and in pre-argument motions has asserted that this court lacked jurisdiction to entertain Reid’s instant appeal. An appeal must be commenced “from a district court to the court of appeals ... within thirty days after the date of entry of the judgment or order appealed from.” Fed.R.App.P. 4(a)(1); see also Peake v. First National Bank and Trust Co., 717 F.2d 1016, 1018 (6th Cir.1983); Equal Employment Opportunity Comm’n v. El-Mart Corp., 694 F.2d 1055 (6th Cir.1982). The thirty day time period commences when the district court complies with Fed. R.Civ.P. 58 and 79(a). Fed.R.App.P. 4(a)(6). Rule 58 provides that “[ejvery judgment shall be set forth on a separate document. A judgment is effective only when set forth and when entered as provided in Rule 79(a).” Fed.R.Civ.P. 58 (emphasis added). Rule 79(a), in turn, mandates that all orders shall be entered by the clerk of courts on the civil docket book corresponding to the case number assigned to such lawsuit. Addressing the standards imposed by Rules 58 and 79(a), this court’s attention is directed to the pronouncements of the Supreme Court in United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973)(per curiam), wherein it stated that Rules 58 and 79(a), which mandate a separate entry of judgment to be recorded in the lawsuit’s corresponding civil docket, must be “mechanically” applied to avoid uncertainty as to when a judgment becomes effective for appellate review. The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment [of Rule 58]. Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty. To eliminate these uncertainties, which spawned protracted litigation over a technical procedural matter, Rule" }, { "docid": "2452251", "title": "", "text": "PER CURIAM. This is Reytblatt’s second effort to appeal from a decision of the district court apparently terminating the litigation adversely to him. We dismissed the first notice of appeal, No. 87-1055, on February 2,1987, because the district court apparently had not entered judgment. The next day the parties produced a document dated December 30, 1986, but docketed on January 26, 1987, on the form used for the entry of judgment in a civil case. This document is preprinted “IT IS ORDERED AND ADJUDGED”, to which the court added: “Insofar as the Court has determined that the defendant is protected by absolute privilege it is unnecessary to determine whether defendant was properly served or whether venue is proper.” The purpose of the separate judgment required by Fed.R.Civ.P. 58 is to let the parties (and the appellate court) know exactly what has been decided and when. The entry of a final judgment under Rule 58 starts the clock for an appeal. But a document that does not dispose of the case does not start the clock. United States v. F.M. Schaefer Brewing Co., 356 U.S. 227, 232-35, 78 S.Ct. 674, 677-79, 2 L.Ed.2d 721 (1958). The “losing” party must appeal in order to guard against the chance that the case is over without knowing what the disposition is, and the appellate court is in a quandary about its ability to decide the case. It is sometimes possible to appeal in. advance of the entry of a separate document under Rule 58, Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), but such appeals present nagging questions that should be avoided by adherence to the rule in the first place. Rule 58 is designed to produce clarity, see United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973); In re Kilgus, 811 F.2d 1112, at 1116-17 (7th Cir.1987); see also Glidden v. Chromalloy American Corp., 808 F.2d 621, 623-24 (7th Cir.1986). An inadequate order undermines the function of the rule. The final judgment in a case should be complete and self-contained. Claybrook" }, { "docid": "8165639", "title": "", "text": "waived here, see Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), as to do so would defeat our appellate jurisdiction. United States v. Indrelunas, 411 U.S. at 221-222, 93 S.Ct. at 1564-1565. As one member of this panel recently observed, “a district court has only limited time to devote to each of its hundreds of cases[]” Otis v. City of Chicago, 29 F.3d 1159, 1172 (7th Cir.1994) (en banc) (Rovner, J., concurring). Yet despite these time restrictions, district courts and their clerks must strive to more faithfully observe the requirements of Rule 58 because the failure to do so only causes additional work for this court in untangling jurisdictional snarls such as this one. See id. at 1163 (“Rule 58 puts the onus of preparing a judgment squarely on the shoulders of the clerk of the district court.”). Because the requirements of Rule 58 were not met here, the time for appeal has not commenced. In re Kilgus, 811 F.2d 1112, 1117 (7th Cir.1987) (“A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the document.”). For the same reason, the district court’s order granting an extension of time for the filing of the appeal, although improvidently entered, is a nullity. Accordingly, this appeal is dismissed for want of jurisdiction. Once the district court has entered a proper Rule 58 judgment, Armstrong may appeal by filing a new notice of appeal within 30 days of that date." }, { "docid": "639290", "title": "", "text": "rendered. We have previously held that Local Civil Rule 54.2 extends the time within which to file for fees from fourteen days to thirty as a standing order of the district court. See Planned Parenthood, 297 F.3d at 261. In this case, the Fund filed its application for attorneys’ fees on January 14, 2005, thirty-one days after the clerk entered the District Court’s summary judgment order. The parties agree that the rules provide a thirty-day time period within which to file a request for fees, and they agree that the clock starts to run when the District Court enters final judgment on the underlying claim. They disagree, however, about whether December 14, 2004, the date of entry of the summary judgment order, should be considered the date of entry of a final judgment giving rise to the fee request. 1. At the outset, we must consider the application of Rule 58 of the Federal Rules of Civil Procedure to the time period for a motion for fees. Rule 58 is most well known for clarifying the time within which an appeal must be taken, but it also clarifies the timing of post-trial motions. Rule 58(a) provides “[ejvery judgment and amended judgment must be set forth on a separate document” except for those disposing of certain motions. If a separate document is required, but no separate document is issued, a court must deem the judgment’s date of entry as 150 days after its entry in the civil docket. Fed.R.Civ.P. 58(b). We mechanically apply Rule 58 to prevent uncertainties as to the date on which a judgment is entered, see United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam); In re Cendant Corp. Sec. Litig., 454 F.3d 235, 243-44 (3d Cir.2006), because “[d]etermining the date of entry is critical for motion practice under the Federal Rules of Civil Procedure[ ] and for the timely filing of a notice of appeal.” United States v. Fiorelli, 337 F.3d 282, 287 (3d Cir.2003) (footnote omitted). Metro argues Rule 58(a) does not require a separate document for a" }, { "docid": "4308368", "title": "", "text": "Cir.1990); Allah v. Sup. Ct. of Cal., 871 F.2d 887, 890 (9th Cir.1989). In 2002, the rules changed. In order to avoid giving parties “forever to appeal,” and because “[p]otential appellees and the judicial system need some limit on the time within which appeals can be brought,” Congress modified the meaning of “entry of judgment” for purposes of determining whether an appeal was timely filed. Fed. R.App. P. 4 advisory committee’s note. In cases where Rule 58(a) requires a “separate document,” judgment is now considered entered “when the earlier of [two] events occurs: [1] the judgment or order is set forth on a separate document, or [2] 150 days have run from entry of the judgment or order in the. civil docket under Federal Rule of Civil Procedure 79(a).” Fed. R.App. P. 4(a)(7)(A)(ii). Federal Rule of Civil Procedure 58 made the same change. Fed.R.Civ.P. 58(c)(2). We applied this new rule in Comedy Club, Inc. v. Improv West Assocs., 553 F.3d 1277 (9th Cir.2009). There, we concluded that the district court’s order compelling the parties to arbitrate some claims and dismissing the remaining claims was a “final order.” Id. at 1283-84. Although the order was “final,” we noted that the district court “did not enter judgment on the order to compel arbitration.” Id. at 1284. Because a separate document had not been filed, we held that the losing party had, under Federal Rule of Appellate Procedure 4(a)(7)(A)(ii), “180 days to appeal the order.” Id. at 1284. The appeal, which came 287 days after the order, was untimely. The D.C. and Seventh Circuits have also applied and discussed this new rule. In Outlaw v. Airtech Air Conditioning and Heating, Inc., 412 F.3d 156 (D.C.Cir.2005), the court observed that the district court’s May 6 order resolved “all pending claims against all parties,” but noted that the “separate document rule” was “ignored.” Id. at 162. Pre-2002, the court noted, that would allow for an eternal deadline, but the rules were amended in 2002 “to address the problem that a failure to comply with the separate document rule meant that the time to appeal never" }, { "docid": "2726032", "title": "", "text": "plaintiffs asked the district court to. order that their motion for attorneys’ fees have the same effect as a Rule 59 motion, which under Appellate Rule 4(a)(4) would defer the time for appeal on the merits until the dispute about attorneys’ fees had been resolved. But on November 26, 2013, the district judge denied that motion, calling it unnecessary. Twenty-seven days remained for appeal, but nothing happened. The deadline for appeals in civil cases is jurisdictional, see Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), so plaintiffs’ inaction has put the district court’s merits decision beyond the scope of appellate review. Plaintiffs maintain that it should matter why the district court denied the motion. Plaintiffs’ lawyer insists that statements the district judge made contemporaneous with his order of November 26 led counsel to think that the judge deemed the motion to be otiose. As counsel understood what the judge said, the judge believed that, because he had decided not to comply with Rule 58(b)(2), it was unnecessary to jump through the hoop created by Rule 58(e). We assume, without needing to decide, that counsel has deciphered the judge’s thinking correctly. Still, what this principally shows is that the judge did not know about Appellate Rule 4(a)(7) (apparently no one had called it to his attention) and therefore did not appreciate the danger that plaintiffs were in if he did not grant the Rule 58(e) motion and their lawyers failed to appeal by December 23. We may suppose that plaintiffs’ lawyers were equally oblivious to the fact that a 180-day clock had been running since June 25. But that is how Rule 4(a)(7) works, whether it is understood or not. Until Rule 4(a)(7) was amended in 2002, litigants were protected by the doctrine of United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), which held that the losing side could wait forever, if that was how long a district court took to enter a Rule 58 judgment. The rulemak-ing committees, the Judicial Conference, and ultimately the Supreme Court (which promulgates changes" }, { "docid": "8165638", "title": "", "text": "the final judgment-rule embodied in Rule 58, among other purposes, operates to protect the opportunity to appeal. Brill v. McDonald’s Corp., 28 F.3d 633, 634-35 (7th Cir.1994) (collecting cases). As this appeal would otherwise be untimely, the final judgment rule “must be mechanically applied in order to avoid ... uncertainties as to the date on which a judgment is entered.” United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973); see also Sassoon v. United States, 549 F.2d at 984-985 (dismissing for want of jurisdiction based on district court’s failure to enter Rule 58 judgment appeal of denial of section 2255 petition which would otherwise be late); Baity v. Ciccone, 507 F.2d at 718 (dismissing for want of jurisdiction based on district court’s failure to enter Rule 58 judgment appeal of denial of section 2254 petition which would otherwise be late). Thus, although it is clear that the district court intended its March 24, 1993 order to end this case, the requirement of a Rule 58 judgment cannot be waived here, see Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), as to do so would defeat our appellate jurisdiction. United States v. Indrelunas, 411 U.S. at 221-222, 93 S.Ct. at 1564-1565. As one member of this panel recently observed, “a district court has only limited time to devote to each of its hundreds of cases[]” Otis v. City of Chicago, 29 F.3d 1159, 1172 (7th Cir.1994) (en banc) (Rovner, J., concurring). Yet despite these time restrictions, district courts and their clerks must strive to more faithfully observe the requirements of Rule 58 because the failure to do so only causes additional work for this court in untangling jurisdictional snarls such as this one. See id. at 1163 (“Rule 58 puts the onus of preparing a judgment squarely on the shoulders of the clerk of the district court.”). Because the requirements of Rule 58 were not met here, the time for appeal has not commenced. In re Kilgus, 811 F.2d 1112, 1117 (7th Cir.1987) (“A party" }, { "docid": "22058267", "title": "", "text": "question regarding the timeliness of LeBoon’s appeal is whether she was entitled to the additional 150 days to file an appeal or whether, as the LJCC argues, she lost the protections of the separate-document rule by clearly signaling that she understood the February 17 Order as a final judgment subject to appeal. The LJCC contends that LeBoon waived the application of the separate-document rule by filing a motion for reconsideration of the February 17 Order, eventually appealing the order, and by stating at oral argument, through counsel, that she understood the February 17 Order to be the final judgment. We disagree. It is clear that a litigant can waive the application of the separate-document rule in the sense that she may file a valid appeal without waiting for the lapse of 150 days from the docketing of a faulty judgment, i.e., before the faulty judgment has been formalized by the passage of the time period contemplated by Rule of Appellate Procedure 4(a)(7)(A). Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam). The LJCC’s position, however, is that when a litigant signals that she understands that a final judgment has been filed despite the order’s failure to comply with the separate-document rule, she must file an appeal within 30 days of the faulty judgment or lose her ability to appeal altogether. This is a dubious argument. See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973) (per curiam) (although the Government had clearly signaled its understanding that a stipulation for damages was the final judgment, the separate-document provision must be “mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered” and therefore the Government’s appeal was timely); Gregson & Assocs. Architects v. Gov’t of the Virgin Islands, 675 F.2d 589 (3d Cir.1982) (per curiam) (holding appeal was timely although the appellant admitted it had understood a faulty judgment to be final); Fed. RApp. P. 4(a) advisory committee notes (2002 amendments) (“[i]n drafting new Rule 4(a)(7)(B) [which provides that appeals" }, { "docid": "18780351", "title": "", "text": "4(a)(6) provides that a judgment is entered within the meaning of Rule 4(a) “when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.” Fed.R.App.P. 4(a)(6). Fed.R.Civ.P. 58 requires that the “judgment” of a District Court be set forth in a separate document. As the notes of the Advisory Committee on Rules explain, the purpose of this requirement is to remove any doubt about when the time for filing a notice of appeal begins to run. See Notes of Advisory Committee — 1963 Amendments. See also United States v. Indrelunas, 411 U.S. 216, 220, 93 S.Ct. 1562, 1564, 36 L.Ed.2d 202 (1973) (purpose of the rule to remove uncertainty over appeal period); Diamond v. McKenzie, 770 F.2d 225, 230 n. 10 (D.C.Cir.1985) (same). As the Supreme Court noted in Indrelunas, this test is to be applied mechanically “in order to avoid new uncertainties as to the date on which a judgment is entered.” 411 U.S. at 222, 93 S.Ct. at 1565. Rule 79(a) requires that the clerk of the court enter the judgment on the civil docket. Thus, as this court recently noted in Diamond v. McKenzie, supra, these two rules establish two procedural requirements for entry of a judgment that triggers the running of the time for appeal: “first, a statement of the judgment on a separate document, and second, the entry of the judgment by the clerk on the civil docket.” 770 F.2d at 228. Applying this rule to the present case compels the conclusion that the judgment of the District Court was entered on April 27th. That order clearly satisfied both of the procedural requirements of Rule 4(a)(6). It stated the judgment of the District Court on a separate document and was entered by the clerk of the court on the civil docket. Consequently, appellants’ notice of appeal, filed well beyond the 60-day appeal period, was untimely. B. As noted above, however, under Federal Rule of Appellate Procedure 4(a)(4), the 60-day appeal period is tolled when a party files certain motions. In this ease, appellants argue, the NRC motion was" }, { "docid": "212981", "title": "", "text": "document”); In re Smith Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir.1982) (same, applying analogous Bankruptcy Rule). As the order appealed from was not a “final judgment,” see Fed.R.Civ.P. 54(a), 58, the appeal period never commenced running prior to the filing of the corrected notice of appeal. Fed. R.App.P. 4(a)(1), (7); Smith, 936 F.2d at 1394; Scola v. Boat Frances, R., Inc., 618 F.2d 147, 151 (1st Cir.1980); see also Bank ers Trust Co. v. Mallis, 435 U.S. 381, 384-86, 98 S.Ct. 1117, 1120-21, 55 L.Ed.2d 357 (1978) (per curiam) (purpose of “separate document” rule is to promote greater predictability as to when time for appeal begins to run); Fiore, 960 F.2d at 233 (same). Although appellants at all times treated the May 24 “Memorandum and Order” as an appealable order, the “separate document” rule is to be strictly applied as concerns the commencement of the appeal period. See United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam) (applying rule 58 mechanically notwithstanding previous aborted appeal by same appellant within appeal period); Fiore, 960 F.2d at 235 (discussing technicality of rule 58); Gregson & Assocs. Architects v. Government of the V.I., 675 F.2d 589, 592-93 (3d Cir.1982) {Indrelunas applied despite both parties’ treatment of memorandum opinion as appealable order); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-90 (4th Cir.1978) (“nor are we free to penalize plaintiffs ... by binding them to their erroneous assertion that judgments” had been entered); see also Fiore, 960 F.2d at 237 (emphasizing that the “separate document” requirement “should always be interpreted ‘to prevent loss of the right to appeal, not to facilitate loss’ ”) (quoting Bankers Trust, 435 U.S. at 386, 98 S.Ct. at 1121); Willhauck v. Halpin, 919 F.2d 788, 792 (1st Cir.1990) (same); 9 Moore’s Federal Practice 1158.02.1[2], at 58-20 to 21. Nevertheless, a notice of appeal deemed premature due to noncompliance with the “separate document” rule does not deprive the appellate court of subject matter jurisdiction, Bankers Trust, 435 U.S. at 384, 385, 98 S.Ct. at 1120; see also Smith," }, { "docid": "14930918", "title": "", "text": "separate judgment as required by Federal Rule of Civil Procedure 58(a).” We have jurisdiction over this appeal. The district court entered its order dismissing Moreno’s suit on May 7, 2014, and Moreno timely filed her notice of appeal on May 29, 2014. As amended in 2002, Rule 4 of the Federal Rules of Appellate Procedure explicitly provides that “[a] failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.” Fed. R.App. P. 4(a)(7)(B); see also Fed. R.App. P. 4(a)(7)(A)(ii) (treating a judgment or order as entered, notwithstanding a district court’s non-compliance with the separate-document rule, if 150 days have run from the district court’s entry of the judgment or order). ■ Indeed, even before the 2002 amendment to Rule 4, while we granted motions to dismiss an appeal where the district court failed to comply with Rule 58’s separate-document requirement, see Nagle v. Lee, 807 F.2d 435, 441 (5th Cir.1987), we also acknowledged that the requirement “is not jurisdictional and may be waived.” Transit Mgmt. of Se. La., Inc. v. Grp. Ins. Admin., Inc., 226 F.3d 376, 382 n. 8 (5th Cir.2000); see also Bankers Trust Co. v. Mollis, 435 U.S. 381, 387-88, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (holding that a district court’s noneompliance with the separate-document rule is waived where the order is evidently intended to represent the final decision and the appellee does not object); Hanson v. Town of Flower Mound, 679 F.2d 497, 500-01 (5th Cir. 1982) (reviewing Mallis and holding that “we may take jurisdiction of an appeal from a ‘final decision’ under § 1291, even though no separate judgment has been entered, when the parties fail to raise the issue”). By asserting that we have jurisdiction and failing to request a dismissal of the appeal, LG USA has waived the district court’s noncompliance with the • separate-document rule. Furthermore, nothing in the record or the district court’s order reflects that the district court intended its order to be non-final." }, { "docid": "2726033", "title": "", "text": "the hoop created by Rule 58(e). We assume, without needing to decide, that counsel has deciphered the judge’s thinking correctly. Still, what this principally shows is that the judge did not know about Appellate Rule 4(a)(7) (apparently no one had called it to his attention) and therefore did not appreciate the danger that plaintiffs were in if he did not grant the Rule 58(e) motion and their lawyers failed to appeal by December 23. We may suppose that plaintiffs’ lawyers were equally oblivious to the fact that a 180-day clock had been running since June 25. But that is how Rule 4(a)(7) works, whether it is understood or not. Until Rule 4(a)(7) was amended in 2002, litigants were protected by the doctrine of United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973), which held that the losing side could wait forever, if that was how long a district court took to enter a Rule 58 judgment. The rulemak-ing committees, the Judicial Conference, and ultimately the Supreme Court (which promulgates changes to the rules) concluded that “forever” is too long and set a 150-day limit. The interaction of that outer bound with the jurisdictional holding of Bowles, together with the failure of class counsel to act in the 27 days that remained available, leads to the class’s problem. When denying the Rule 58(e) motion, the district judge did not assure the parties that they were safe in waiting until he acted on the request for attorneys’ fees. Counsel just drew that inference. But suppose the judge had said so, point blank. Until Bowles that assurance would have protected the class under Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). As restated in Osterneck v. Ernst & Whinney, 489 U.S. 109, 179, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989), these decisions establish that, if “a party has performed an act which, if properly done, would postpone the deadline for filing his appeal" }, { "docid": "17003801", "title": "", "text": "cases retaining separate identities. Sandwiches, Inc. v. Wendy’s International, Inc., 822 F.2d 707, 710 (7th Cir.1987), adds that courts should keep in mind the relation between consolidation and appeal. Preserving formally separation may multiply the number of appeals, which should not occur when there is only one nucleus of facts. In order for plaintiffs to make up a single class their claims must have a great deal in common. Fed.R.Civ.P. 23(b)(3). We should not have to review twice claims common enough to be classed together. By all lights, the Majeski and Eckstein cases should have been consolidated for all purposes. Nonetheless, the district court entered two judgments, just as if the suits were separate. Different plaintiffs appealed from each judgment. Appellate jurisdiction follows the judgment, providing the certainty that is essential when a misstep may forfeit a valuable right. Separate judgments are independently appealable, and no one need appeal until the formal judgment under Fed. R.Civ.P. 58 has been entered. United States v. Indrelunas, 411 U.S. 216, 220-22, 93 S.Ct. 1562, 1564-65, 36 L.Ed.2d 202 (1973). Sometimes a party may appeal from a final decision not embodied in a judgment, see Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), but it is always entitled to wait for (and rely on) the separate Rule 58 judgment. Shalala v. Schaefer, — U.S. —, —, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993); Mallis, 435 U.S. at 386, 98 S.Ct. at 1120; In re Kilgus, 811 F.2d 1112, 1117 (7th Cir.1987). Anything else baits a trap for unwary litigants — for wary ones, too, the kind who pay particular attention to judgments. The Eckstein plaintiffs therefore were entitled to rely on the fact that the district judge issued two judgments. They appealed in a timely manner from theirs, and the Majeski plaintiffs’ motion did not affect that appeal. II BFI used a single prospectus for the two offerings of its partnership interests. When BFI re-offered these interests in the fall of 1985 it furnished investors with a supplement describing recent events. The plaintiffs’ claims center on" } ]

[ { "docid": "838438", "title": "", "text": "346 (E.D.Tenn.1976). After a careful analysis of the Executive Jet opinion, cases inter preting that decision, and relevant authorities on the subject, the Court is of the opinion that federal admiralty jurisdiction does not apply to the facts alleged herein. Prior to Executive Jet, the general rule concerning maritime torts had been that “the jurisdiction of the admiralty is exclusively dependent upon the locality of the act.” 409 U.S. at 253, 93 S.Ct. at 497, quoting from Thomas v. Lane, 23 F.Cas. pp. 957, 960, No. 13,902 (C.C.Me.1813). But, as the Supreme Court noted, as early as 1850, admiralty scholars had suggested that maritime locality alone was insufficient basis for admiralty jurisdiction. In recent times some lower federal courts, including our own Sixth Circuit, in Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (1967), began to hold that a nexus with maritime commerce was an additional requirement for the invocation of admiralty jurisdiction. Justice Stewart, for a unanimous court in Executive Jet held that locality alone was not a sufficient basis to invoke the admiralty jurisdiction of the Court. While the facts of the case involved an airplane crash, and the actual holding was so restricted, much of the opinion discusses the Court’s dissatisfaction with the locality alone test as a basis for admiralty jurisdiction in all tort actions. Professor Moore’s scholarly treatise was cited frequently by Justice Stewart, and we agree with his interpretation of the Executive Jet opinion: “The opinion clearly seems to put to rest the idea that locality alone can ever provide the basis for admiralty jurisdiction unless specifically provided by Congress. The entire first part of the Supreme Court’s opinion, looking in almost total measure to non-aviation cases, illustrates the Court’s disillusion with the strict locality rule.” 7A J. Moore, Federal Practice, Admiralty ¶ .325[3] (2d ed. 1975 Supp.) In this Court’s opinion, in order to invoke the admiralty jurisdiction, the libelants must establish a significant relationship to traditional maritime activity. The reasons for this requirement are explained in Executive Jet, and more specifically in the following passage from Professor Moore: “The only" } ]

[ { "docid": "15773047", "title": "", "text": "damages for control of the blowout, repair of damaged well facilities, compensation for lost gas and the like. After a bench trial, the District Court concluded first that it had jurisdiction in admiralty. The Court then found that the well blowout was proximately due 75% to the negligence of Sohyde and 25% to the negligence of Coastal. In accordance with these findings, the Court entered judgment in favor of Coastal for $1,761,898.74. The Court further concluded that Sohyde’s liability to Coastal was covered under the insurance policies it had with the two insurance companies. This appeal was brought by Market Insurance Co. on its own behalf and on behalf of Sohyde — for purposes of simplification the collective appeal is referred to as one by Sohyde — limited solely to that portion of the judgment apportioned to Market. Two points are urged on this appeal. First, it is contended that admiralty jurisdiction does not lie over this claim. Second, it is argued that Market’s insurance policy does not cover the liability of Sohyde to Coastal. A Maritime Blowout? The jurisdictional question is of crucial importance in this case. Sohyde maintains that admiralty jurisdiction was improperly assumed by the District Court and that under diversity jurisdiction Louisiana’s contributory negligence rule bars recovery. Coastal contends that the District Court properly assumed jurisdiction in admiralty and, therefore, properly applied the maritime rule of comparative negligence. Although the express stated findings of the District Court with respect to the jurisdictional question are not extensive, it is evident that the Court felt admiralty juris diction to be appropriate under the Admiralty Extension Act, 46 U.S.C. § 740. We agree with the District Court that if admiralty jurisdiction is to be found in this case, this Act must be its source. The Act, in pertinent part, provides: The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land. Under the express terms of the" }, { "docid": "13632058", "title": "", "text": "were also used in land-based electrical equipment was insufficient reason to deny admiralty jurisdiction where the defective part had caused damage to a marine vessel in navigable waters. Id. Sperry Rand does not preclude all consideration of the maritime nature of a product; rather, it holds that lack of a uniquely maritime character may not be dispositive of the jurisdictional question. In Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir.), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981), the maritime nature of the instrumentalities was considered as a part of the four-factor Kelly analysis. Sohyde involved claims for property damage arising from a blowout of a high pressure gas well which occurred during workover operations on the well aboard a submersible drilling barge. This court found it relevant to the nexus analysis that the instrumentalities involved were essentially the same as those involved in a land-based workover operation. Id., at 1137. This fact counseled against invoking admiralty jurisdiction over the claims. The fact that asbestos insulation is not peculiar to maritime activities suggests that this dispute may not be within admiralty jurisdiction. (3) Causation and type of injury In Sohyde we found relevant to the jurisdictional analysis that all of the causative factors could have as easily occurred on land and that the injury and damages were indistinguishable from those arising from land-based well blowouts. Sohyde, 644 F.2d at 1137-8. Similarly, in the cases before us, both the injuries and their cause are identical to the asbestos-related injuries affecting thousands of land-based workers who have no relationship to maritime activity. In addition, the type of injury involved here bears little if any relationship to maritime navigation or commerce. Our decisions giving a maritime character to land-based tort claims do not involve industrial diseases found in land-based workers; rather, the injuries in those cases were of uniquely maritime character such as ship collision or sinking while actually underway on navigable waters. See Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319, 321 (5th Cir.1980) (claim that components" }, { "docid": "22634226", "title": "", "text": "personnel of a “vessel” aboard which the seaman is employed. The reach of the Jones Act is a peril of the sea that could hardly have been dreamt of by the landlubbers in the oil business. The Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters. Our decision on this appeal turns on an examination of these cases and the applicability of their rationale to the facts before us. I. Johnie Robison was an oil field worker. The complaint alleges that in August, 1956, Offshore Company hired him as a member of the crew of the vessel “Offshore No. 55”. Offshore Company says that he was hired as a roustabout at $1.96 an hour. A roustabout is a general handyman in the oil fields, subject to any kind of duty involving manual labor. At the time of the accident resulting in this litigation Robison was working as a roughneck. A roughneck is a driller’s helper, a laborer in a drilling crew who does the hard general work in the rigging and drilling of a well. Robison had never worked as a seaman on board a vessel, as the terms “seaman” and “vessel” are ordinarily understood. He had never carried seaman’s papers, and none of the oil crew carried seaman’s papers as a condition of employment. Offshore Company is in the business of drilling and exploring for oil and gas, especially in the Gulf of Mexico. It owns and operates a drilling rig identified as “Offshore No. 55”. This is a rig mounted on what Offshore calls a mobile drilling platform and what Robison calls a barge. At the time of the accident it was resting firmly on the bottom of the Gulf of Mexico, about three miles from the Texas coast. It is 200 feet long, 104 feet wide, and 15 feet deep. It was built by the American Bridge Shipyards. Offshore No. 55 has a" }, { "docid": "15773056", "title": "", "text": "Robison, 266 F.2d 769, 779, 1959 A.M.C. 2049 (5th Cir. 1959); Producers Drilling Company v. Gray, 361 F.2d 432, 434 (5th Cir. 1966). However, we are not convinced that the term “vessel” for Jones Act purposes, which is subject to liberal construction consistent with the purposes of the Act, is necessarily a vessel for other purposes as well. At any rate, we believe that even though a structure may meet some abstract definition of “vessel” under certain circumstances, this is not necessarily dispositive of the issue of whether the structure has a substantial relationship to maritime activity at the time of the incident in question. With regard to the instant case, if prior to the well blowout Sinbad had been retrieved from Davey Jones’ locker and placed on the deck of the Sohyde 28, it is doubtful that among the first words'to leave his mouth would have been “weigh anchor”. Although the Sohyde 28 may have had some maritime character at the time of the well blowout — in the sense that it floated in and presumably would float out — it clearly was not substantial. As for the “instrumentalities” involved in this case, they were essentially the same as those involved in a land-based workover operation. The record is littered with references to blowout preventers (consisting of pipe rams, blind rams and hydrils), tubing, drilling mud, and the like. None of these instrumentalities have a peculiarly salty flavor. Factor (iii) under Kelly, the causation and type of injury, similarly has little maritime character. The District Court found among the causes of the well blowout were the failure of Sohyde to maintain proper mud levels during the process of changing rams on the blowout preventers, the failure of Sohyde to complete the ram change operations within a reasonable period of time under the prevailing emergency conditions, the failure of Sohyde to maintain its equipment in fit condition, and the failure of Coastal properly to supervise the operations. All of these causative factors could just as easily have occurred on land. The injury occasioned in this case was merely a well" }, { "docid": "7015541", "title": "", "text": "activity is maritime commerce. Once it is determined that offshore drilling is maritime commerce, then it is necessary to examine the nature and purpose of the employee’s work — location aside — to determine whether it has a realistically significant relationship to the maritime commerce. If so, the status test is satisfied. The conclusion that offshore drilling is maritime commerce is not in conflict with Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir. 1981). In examining the functions and roles of an operator of a gas well and a contractor performing workover operations on a gas well, the Sohyde Drilling Court concluded that “[t]he functions and roles of these parties .was hardly of a peculiarly maritime nature.” Id. at 1136. Likewise, we do not conclude that Pippen’s function or role was of a peculiarly maritime nature. Indeed, his job could have been performed either offshore or on land. However, Sohyde Drilling did not hold that offshore drilling was not maritime commerce. Since this Court determined above that offshore drilling is maritime commerce, we conclude that, although Pippen’s job was not itself peculiarly maritime in nature, the purpose of Pippen’s job was to facilitate maritime commerce. . Inland Well cites this Court’s recent decision in Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir. 1981), as dispositive of the issue whether Pippen was engaged in maritime employment at the time of his injury. In that case, the Court held that a suit for property damage arising out of a blowout of a high pressure gas well was outside the Court’s admiralty jurisdiction because the incident lacked a substantial maritime relationship. The blowout had occurred while the defendant was performing workover operations on the plaintiffs gas well aboard a submersible drilling barge resting on the bottom of a dead-end dredged canal slip in Louisiana. The Court held that claims brought under the Admiralty Extension Act, 46 U.S. C.A. § 740, were subject to the requirement that the wrong asserted must bear a significant relationship to maritime activity." }, { "docid": "15773046", "title": "", "text": "slip was connected to the Intracoastal Waterway and Vermillion Bay by navigable canals and was accessible only by water transportation such as barges, crew boats or sea planes— the nearest solid ground being approximately two miles away. In June 1971, Coastal determined' that damaged tubing in the well was causing gas to leak from the lower producing zone to the upper zone. On July 7, 1971, Coastal contracted with Sohyde to perform work-over operations on the well. Thereafter, Sohyde towed a submersible drilling barge, the Sohyde 28, onto location, submersed it to the bottom of the canal, and commenced operations. On July 13, during the course of operations, the well blew out and ultimately caught on fire, causing extensive damage. Following the well blowout, various claims, counter-claims and cross-claims ensued. Ultimately all of these actions, including Jones Act claims, were settled, save claims by Coastal against Sohyde and its liability insurers — Market Insurance Co. and Employers Surplus Lines Insurance Co. Coastal’s claims were solely for property damages arising out of the well blowout, including damages for control of the blowout, repair of damaged well facilities, compensation for lost gas and the like. After a bench trial, the District Court concluded first that it had jurisdiction in admiralty. The Court then found that the well blowout was proximately due 75% to the negligence of Sohyde and 25% to the negligence of Coastal. In accordance with these findings, the Court entered judgment in favor of Coastal for $1,761,898.74. The Court further concluded that Sohyde’s liability to Coastal was covered under the insurance policies it had with the two insurance companies. This appeal was brought by Market Insurance Co. on its own behalf and on behalf of Sohyde — for purposes of simplification the collective appeal is referred to as one by Sohyde — limited solely to that portion of the judgment apportioned to Market. Two points are urged on this appeal. First, it is contended that admiralty jurisdiction does not lie over this claim. Second, it is argued that Market’s insurance policy does not cover the liability of Sohyde to Coastal." }, { "docid": "13632057", "title": "", "text": "a vessel — possess few maritime attributes.” Myhran, 741 F.2d at 1122, quoting, Owens-Illinois Inc. v. United States District Court, 698 F.2d 967, 971 (9th Cir.). Appellants argue that our decision in Sperry Rand precludes us from considering the fact that the asbestos products are not uniquely maritime. We disagree. In Sperry Rand, a vessel was grounded and involved in a collision because of a defect in the gyro-pilot steering system. Sperry Rand Corp. v. Radio Corp. of America, 618 F.2d 319 (5th Cir.1980). Sperry Rand, the manufacturer of the system, settled with the vessel owners and then determined that the failure was caused by defects in some of the component parts. Sperry Rand filed suit against RCA, the manufacturer of the component parts, alleging admiralty jurisdiction. In discussing whether Sperry Rand had stated a claim within the court’s admiralty jurisdiction, this court' rejected RCA’s argument that a significant relationship with traditional maritime activity was lacking because the component part was not uniquely maritime. Id., at 321. We held that the fact that the parts were also used in land-based electrical equipment was insufficient reason to deny admiralty jurisdiction where the defective part had caused damage to a marine vessel in navigable waters. Id. Sperry Rand does not preclude all consideration of the maritime nature of a product; rather, it holds that lack of a uniquely maritime character may not be dispositive of the jurisdictional question. In Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir.), cert. denied, 454 U.S. 1081, 102 S.Ct. 635, 70 L.Ed.2d 615 (1981), the maritime nature of the instrumentalities was considered as a part of the four-factor Kelly analysis. Sohyde involved claims for property damage arising from a blowout of a high pressure gas well which occurred during workover operations on the well aboard a submersible drilling barge. This court found it relevant to the nexus analysis that the instrumentalities involved were essentially the same as those involved in a land-based workover operation. Id., at 1137. This fact counseled against invoking admiralty jurisdiction over the claims. The fact" }, { "docid": "6960429", "title": "", "text": "an impact on the choice of law. See Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(a); Laredo Offshore Constructors Inc. v. Hunt Oil Company, 754 F.2d 1223 (5th Cir.1985). How to resolve these inconsistencies is perplexing. What appears to us as a serious legal conundrum may have had little effect in the real world. That is to say, oil companies, drilling contractors and oil field service companies, together with their insurers, may already have adjusted to the overlapping applications of maritime and state law by choice of law clauses or adjustments in the rates of coverage. We should not lightly “straighten out” the formal logic of the law where to do so would upset stable commercial expectations. Moreover, for purposes of interpreting the reach of federal maritime law, the relative importance that one attaches to the use of “vessels” in offshore oil exploration, the dissimilarity between such exploration and traditional maritime concerns, the impact of potential harm to maritime commerce, and the need for uniformity are matters that have not been settled by the Supreme Court or our court. This case radiates with the uncertainties that exist in this area of the law. Although it is technically resolved by application of settled authority, the persuasiveness of that authority is much in doubt. There are at least three ways to resolve the inconsistency among our precedents. First, we could hold that no movable offshore oil and gas rig, when moored and engaged in exploration or production, is a vessel. This would apply the realistic view of Thurmond and Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir.1981) that (a) federal maritime law was not intended to cover liabilities arising from mineral exploration and (b) the adjective use of vessels to assist in such operations is not sufficient to invoke the law of admiralty. This result would also eliminate the rather absurd inconsistency that otherwise exists between applying maritime law to certain mineral exploration contracts when the drilling occurs in state territorial waters, as here, while state law governs precisely the same contractual relationship" }, { "docid": "15773061", "title": "", "text": "Marine Company owned the barge; and Sohyde Drilling and Exploration Company owned certain equipment located on the barge. Because it is unnecessary to distinguish between these various entities, for purposes of this appeal we refer to them collectively as “Sohyde”. . Market’s policy with Sohyde contained a $100,000.00 policy limit. . Sohyde asserts in the alternative that even if admiralty jurisdiction lies in this case, Louisiana substantive law should apply. In light of our ultimate holding, we need not pass on this question. . At least three Federal District Courts and one noteworthy treatise have reached this same conclusion. See Jorsch v. LeBeau, 449 F.Supp. 485, 487 (N.D.Ill., 1978); Roberts v. Grammer, 432 F.Supp. 16, 18 (E.D.Tenn.1977); Complaint of Cook Transportation System, Inc., 431 F.Supp. 437, 442 (W.D.Tenn.1976). See also 7A Moore’s Federal Practice (2d ed.) ¶ .325[4] n. 30 (Supp.): “The fact that a vessel causes shore-inflicted harm is not itself sufficient to trigger application of the Extension of Admiralty Jurisdiction Act. There must, additionally, be some maritime nexus.” . Certain language in Robison suggests that the term “vessel” is given particularly liberal construction under the Jones Act and thus that a “Jones Act vessel” might not necessarily be a “vessel” for other purposes: The [Jones] Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters. 266 F.2d at 771. % * * * * * ... under the Jones Act a vessel may mean something more than a means of transport on water. Id. at 776. ****** Expansion of the terms ‘seaman’ and ‘vessel’ are consistent with the liberal construction of the Act that has characterized it from the beginning and is consistent with its purposes. Id. at 780. See also 7A Moore’s at ][.215[6]: When attempting to determine whether a structure is or is not a “vessel”, within the scope of a particular statutory enactment, the underlying intent of the legislature should be ascertained," }, { "docid": "6966028", "title": "", "text": "in general terms as an injury to a worker while repairing and maintaining a jack-up rig in navigable waters. Without a doubt, worker injuries, particularly to those involved in repair and maintenance, can have a disruptive impact on maritime commerce by stalling or delaying the primary activity of the vessel. As to the second inquiry, the repair and maintenance of a jack-up drilling rig on navigable waters is certainly a traditional maritime activity. Moreover, we note that this tort occurred aboard a vessel on navigable waters. Providing compensation for shipboard injuries is a traditional function of the admiralty laws. See Sisson, 497 U.S. at 368-75, 110 S.Ct. at 2898-2902 (Scalia, J., concurring) (arguing that all vessel-related torts fall within the admiralty jurisdiction).. Thus, the activity giving rise to Coats’ accident has a sufficient connection to traditional maritime activity to support exercise of our admiralty tort jurisdiction. MIS’ reliance on Sohyde Drilling & Marine Co. v. Coastal Gas Producing Co., 644 F.2d 1132 (5th Cir.1981), is misplaced. There, we applied the Kelly factors and concluded that admiralty jurisdiction was lacking in a suit for property damage arising from the blowout of a high-pressure gas well locat- ed in a dead-end canal slip in Louisiana. Coastal, the operator of the well, had hired Sohyde to perform workover operations to correct a loss of production. While denying jurisdiction over the property damage at issue, the court remarked that claims for personal injury suffered on navigable waters would certainly fall within admiralty. Id. at 1136-37. Therefore, Sohyde actually supports the exercise of admiralty jurisdiction in this case, one involving only personal injury. MIS’ arguments are without merit. B. The Lauritzenr-Rhoditis Factors The Lauritzen-Rhoditis factors govern the choice of law: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured worker; (4) the allegiance of the defendant shipowner; (5) the place of the contract; (6) the inaccessibility of the foreign forum; (7) the law of the forum; and (8) the shipowner’s base of operations. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 308-09, 90" }, { "docid": "15773062", "title": "", "text": "suggests that the term “vessel” is given particularly liberal construction under the Jones Act and thus that a “Jones Act vessel” might not necessarily be a “vessel” for other purposes: The [Jones] Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters. 266 F.2d at 771. % * * * * * ... under the Jones Act a vessel may mean something more than a means of transport on water. Id. at 776. ****** Expansion of the terms ‘seaman’ and ‘vessel’ are consistent with the liberal construction of the Act that has characterized it from the beginning and is consistent with its purposes. Id. at 780. See also 7A Moore’s at ][.215[6]: When attempting to determine whether a structure is or is not a “vessel”, within the scope of a particular statutory enactment, the underlying intent of the legislature should be ascertained, if at all feasible. Notwithstanding that two statutes contain substantially similar definitions of the term vessel, what may reasonably qualify as a “vessel” for the purpose of one statute might well thwart the purpose of the other statute. Id. at pp. 2432-33. * * * * * * Thus, notwithstanding two statutes may contain substantially identical language or even both adopt the same statutory definition of “vessel,” it is entirely conceivable that what may constitute a “vessel” for one purpose may well constitute a different type of structure for purposes of applying the other statute. In short, reason and legislative intent must prevail over a literal reading of the acts. Id. at p. 2434. The problem is also posed in determining whether a structure classed as a vessel for Jones Act purposes is a “vessel” for purposes of Limitation of Shipowner’s Liability, 46 U.S. C.A. § 181, et seq. See, In re United States Air Force Texas Tower No. 4, 203 F.Supp. 215 (S.D.N.Y.1962). Finally, for a review of cases in which courts have been" }, { "docid": "14362487", "title": "", "text": "more particularly, on the causes of the harm, they would have to decide to some extent the merits of the causation issue to answer the legally and analytically antecedent jurisdictional question. 497 U.S. at 364-65, 110 S.Ct. at 2897. Declining to ascertain the precise cause of the fire, the Court determined the relevant activity to be “the storage and maintenancé of a vessel at a marina on navigable waters.” Similarly, the relevant activity in this case is the repair and maintenance of a jack-up drilling rig on navigable waters. Traditional concepts of the role of admiralty, the final faetor, also support admiralty jurisdiction. This case arises from a tort that occurred aboard a vessel on navigable waters. One of the traditional roles of admiralty law is to provide compensation for injuries aboard ship. See Sisson, 497 U.S. at 366-75, 110 S.Ct. at 2898-02 (Scalia, J., concurring) (arguing that all vessel-related torts fall within the admiralty jurisdiction). MIS’s reliance on Sohyde Drilling & Marine Co. v. Coastal Gas Producing Co., 644 F.2d 1132 (5th Cir.1981), is misplaced. There, we applied the Kelly factors and concluded that admiralty jurisdiction was lacking in a suit for property damage arising from the blowout of a high-pressure gas well located in a dead-end canal slip in Louisiana. Coastal, the operator of the well, had hired Sohyde to perform workover operations to correct a loss of production. Critical to the court’s decision was its distinction between property damage and personal injury. While denying jurisdiction over the property damage at issue, the court remarked that claims for personal injury suffered on navigable waters would certainly fall within admiralty. Id. at 1136-37; see also Broughton, 911 F.2d at 1052. Therefore, Sohyde actually supports the exercise of admiralty jurisdiction in this case, one involving only personal injury. MIS’s arguments are without merit. B. Because this is an admiralty case, the Lauritzen-Rhoditis factors govern the choice of law: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or domicile of the injured worker; (4) the allegiance of the defendant shipowner; (5) the place" }, { "docid": "15773055", "title": "", "text": "and roles of the parties. The two principal parties involved in this case are Coastal and Sohyde. At the time of this incident, Coastal was the operator of the gas well, and its basic function was to obtain production of gas from the well. Sohyde was a contractor whose function was to perform workover operations on the well to correct loss of production. The functions and roles of these parties was hardly of a peculiarly maritime nature. Factor (ii) under Kelly, the vehicles and instrumentalities involved, gives us somewhat greater pause. The “vehicle” involved in this case was a submersible drilling barge which, at the time of the well blowout, was resting on the bottom of an eight foot deep canal. There seems little doubt that if the present action were one for personal injuries under the Jones Act or maritime law sustained by one having the status of a Robison seaman that the drilling barge, even in its submerged position, would be considered a “vessel” for purposes of the Act. See, Offshore Co. v. Robison, 266 F.2d 769, 779, 1959 A.M.C. 2049 (5th Cir. 1959); Producers Drilling Company v. Gray, 361 F.2d 432, 434 (5th Cir. 1966). However, we are not convinced that the term “vessel” for Jones Act purposes, which is subject to liberal construction consistent with the purposes of the Act, is necessarily a vessel for other purposes as well. At any rate, we believe that even though a structure may meet some abstract definition of “vessel” under certain circumstances, this is not necessarily dispositive of the issue of whether the structure has a substantial relationship to maritime activity at the time of the incident in question. With regard to the instant case, if prior to the well blowout Sinbad had been retrieved from Davey Jones’ locker and placed on the deck of the Sohyde 28, it is doubtful that among the first words'to leave his mouth would have been “weigh anchor”. Although the Sohyde 28 may have had some maritime character at the time of the well blowout — in the sense that it floated in" }, { "docid": "15773059", "title": "", "text": "that leaving the parties to pursue state law remedies would disturb the federal interest of maintaining the uniformity of maritime law. Under the circumstances, we believe that the interests of federal-state comity would be best served by having this dispute resolved under state law. Dispute Anchored In Louisiana Although we conclude that admiralty jurisdiction was improperly assumed in this case because of the lack of a substantial maritime relationship, we nevertheless remand this case for further proceedings by the District Court. The District Court’s conclusion that the cause of the well blowout was 25% due to the negligence of Coastal was made in light of its erroneous conclusion that the maritime rule of comparative negligence controlled the case. Findings which are made under erroneous legal principles cannot be credited. See Kirksey v. City of Jackson, 625 F.2d 21, 21-22 (5th Cir. 1980); NLRB v. Alterman Transport Lines, 587 F.2d 212, 220 (5th Cir. 1979); Theriault v. Silber, 547 F.2d 1279, 1280 (5th Cir.), cert. denied, 434 U.S. 871, 98 S.Ct. 216, 54 L.Ed.2d 150 (1977); Costello v. Lipsitz, 547 F.2d 1267, 1276-77 (5th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 109, 54 L.Ed.2d 88 (1977). Consequently, we are unable to say that the District Court would have reached the same conclusion if it had considered the case in light of the contributory negligence rule of Louisiana, and accordingly we deem remand to be appropriate. By our remand, we make no intimations as to the appropriate allocation of fault by the District Court in this case, nor, even more fundamentally, as to whether Federal jurisdiction lies under some ground other than admiralty. Furthermore, we not pass at this time on the question of whether Market’s insurance policy covers any liability which Sohyde might ultimately have to Coastal since there is at least a reasonable possibility that this question may be rendered moot by the liability decision, if any, of the District Court on remand. VACATED AND REMANDED. . Various Sohyde entities were involved in this case. Sohyde Drilling and Workover Company entered into the contract with Coastal; Sohyde Drilling and" }, { "docid": "15773060", "title": "", "text": "Costello v. Lipsitz, 547 F.2d 1267, 1276-77 (5th Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 109, 54 L.Ed.2d 88 (1977). Consequently, we are unable to say that the District Court would have reached the same conclusion if it had considered the case in light of the contributory negligence rule of Louisiana, and accordingly we deem remand to be appropriate. By our remand, we make no intimations as to the appropriate allocation of fault by the District Court in this case, nor, even more fundamentally, as to whether Federal jurisdiction lies under some ground other than admiralty. Furthermore, we not pass at this time on the question of whether Market’s insurance policy covers any liability which Sohyde might ultimately have to Coastal since there is at least a reasonable possibility that this question may be rendered moot by the liability decision, if any, of the District Court on remand. VACATED AND REMANDED. . Various Sohyde entities were involved in this case. Sohyde Drilling and Workover Company entered into the contract with Coastal; Sohyde Drilling and Marine Company owned the barge; and Sohyde Drilling and Exploration Company owned certain equipment located on the barge. Because it is unnecessary to distinguish between these various entities, for purposes of this appeal we refer to them collectively as “Sohyde”. . Market’s policy with Sohyde contained a $100,000.00 policy limit. . Sohyde asserts in the alternative that even if admiralty jurisdiction lies in this case, Louisiana substantive law should apply. In light of our ultimate holding, we need not pass on this question. . At least three Federal District Courts and one noteworthy treatise have reached this same conclusion. See Jorsch v. LeBeau, 449 F.Supp. 485, 487 (N.D.Ill., 1978); Roberts v. Grammer, 432 F.Supp. 16, 18 (E.D.Tenn.1977); Complaint of Cook Transportation System, Inc., 431 F.Supp. 437, 442 (W.D.Tenn.1976). See also 7A Moore’s Federal Practice (2d ed.) ¶ .325[4] n. 30 (Supp.): “The fact that a vessel causes shore-inflicted harm is not itself sufficient to trigger application of the Extension of Admiralty Jurisdiction Act. There must, additionally, be some maritime nexus.” . Certain language in Robison" }, { "docid": "878550", "title": "", "text": "S.Ct. 328, 62 L.Ed.2d 225 (1979) (emphasis added). See also Sohyde Drill. & Marine v. Coastal States Gas Prod., 644 F.2d 1132 (5th Cir. 1981), petition for cert, filed sub. nom. Valero Energy Corp. v. Sohyde Drilling & Workover, Inc., 50 U.S.L.W. 3045 (U.S. Aug. 18, 1981) (No. 81-222), (oil well workover not marine activity). It seems to me that in ignoring the express language of both houses of Congress and an opinion by our own court, all limiting, with one voice, the meaning of the term “maritime employment” as used in the statutory definition to “loading, unloading, repairing, or building a vessel” and activities ejusdem generis with these — such as shipbreaking — and, in defiance of these authoritative and binding statements, extending the term to cover an industry entirely different from shipping and to an entire class of oilfield workers having nothing whatever to do with shipping and its supporting activities, the majority here and the panel in Pippen have acted with extraordinary freedom. Their novel departure places them, at least in principle, in a position of conflict with every other circuit that I am aware has considered the matter — the Second, the Fourth, and the Ninth, all major maritime circuits — and with the Supreme Court as well. The Supreme Court and our sister circuits. The first decision within our circuit to consider the effect of the 1972 amendments on coverage was that of the district court in St. Julien v. Diamond M Drilling Co., 403 F.Supp. 1256 (E.D.La.1975), which extended LHWCA coverage to a specialty oil worker on a drilling barge on the basis of just such a notion of universally expanded coverage. There, commenting on the 1972 amendments to LHWCA coverage, the district court observed: The purpose of the 1972 LHWCA amendments was to expand coverage; there is no evidence of a congressional intent to restrict coverage previously afforded. See Report of the Senate Subcommittee on Labor of the Committee on Labor and Public Welfare, 92d Cong., 2d Sess., (1972), p. 12; Report of the House Committee on Education and Labor, 92d Cong., 2d" }, { "docid": "22634225", "title": "", "text": "WISDOM, Circuit Judge. This case propounds a riddle: When is a roughneck a seaman? The complainant offers the solution: under the Jones Act — when the roughneck is injured while working as a member of a drilling crew on a mobile drilling platform towed to a well located in navigable waters. Respondents have no patience with conundrums: an oil worker on a rig firmly planted on the floor of the Gulf of Mexico is not a seaman, not on a vessel, and not entitled to the benefits of the Jones Act. When the facts are clear, as in this case, so respondents contend, litigants should not be exposed to the risk of a capricious jury finding that an ordinary oil worker is a Jones Act seaman simply because he is employed on an offshore drilling barge in a capacity that contributes to the accomplishment of the barge’s mission. The Jones Act gives a “seaman” (not defined) the right to sue in an action at law for damages arising from the negligence of the owner or personnel of a “vessel” aboard which the seaman is employed. The reach of the Jones Act is a peril of the sea that could hardly have been dreamt of by the landlubbers in the oil business. The Act has always been construed liberally, but recent decisions have expanded the coverage of the Jones Act to include almost any workman sustaining almost any injury while employed on almost any structure that once floated or is capable of floating on navigable waters. Our decision on this appeal turns on an examination of these cases and the applicability of their rationale to the facts before us. I. Johnie Robison was an oil field worker. The complaint alleges that in August, 1956, Offshore Company hired him as a member of the crew of the vessel “Offshore No. 55”. Offshore Company says that he was hired as a roustabout at $1.96 an hour. A roustabout is a general handyman in the oil fields, subject to any kind of duty involving manual labor. At the time of the accident resulting in" }, { "docid": "15773054", "title": "", "text": "nor relieve them from jurisdictional constraints unrelated to locality — a la Executive Jet —imposed on general maritime tort claimants. Accordingly, we find claims under the Admiralty Extension Act to be subject to the “maritime relationship” rule of Executive Jet. Substantially Salty?: Of Jets And Vessels Having concluded that actions under the Admiralty Extension Act are subject to the Executive Jet “maritime relationship” rule, we now consider that rule in light of the facts of the instant case. This Court in Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973) outlined four factors which may be considered in determining the existence of a substantial maritime relationship: (i) The functions and roles of the parties; (ii) the types of vehicles and instrumentalities involved; (iii) the causation and type of injury; and (iv) traditional concepts of the role of admiralty law. Upon consideration of-each of these factors, we are unable to say that the circumstances surrounding the incident which gave rise to this action had a substantial maritime relationship. Factor (i) under Kelly is the functions and roles of the parties. The two principal parties involved in this case are Coastal and Sohyde. At the time of this incident, Coastal was the operator of the gas well, and its basic function was to obtain production of gas from the well. Sohyde was a contractor whose function was to perform workover operations on the well to correct loss of production. The functions and roles of these parties was hardly of a peculiarly maritime nature. Factor (ii) under Kelly, the vehicles and instrumentalities involved, gives us somewhat greater pause. The “vehicle” involved in this case was a submersible drilling barge which, at the time of the well blowout, was resting on the bottom of an eight foot deep canal. There seems little doubt that if the present action were one for personal injuries under the Jones Act or maritime law sustained by one having the status of a Robison seaman that the drilling barge, even in its submerged position, would be considered a “vessel” for purposes of the Act. See, Offshore Co. v." }, { "docid": "7015542", "title": "", "text": "offshore drilling is maritime commerce, we conclude that, although Pippen’s job was not itself peculiarly maritime in nature, the purpose of Pippen’s job was to facilitate maritime commerce. . Inland Well cites this Court’s recent decision in Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir. 1981), as dispositive of the issue whether Pippen was engaged in maritime employment at the time of his injury. In that case, the Court held that a suit for property damage arising out of a blowout of a high pressure gas well was outside the Court’s admiralty jurisdiction because the incident lacked a substantial maritime relationship. The blowout had occurred while the defendant was performing workover operations on the plaintiffs gas well aboard a submersible drilling barge resting on the bottom of a dead-end dredged canal slip in Louisiana. The Court held that claims brought under the Admiralty Extension Act, 46 U.S. C.A. § 740, were subject to the requirement that the wrong asserted must bear a significant relationship to maritime activity. The Court noted that there were four factors to be considered in determining whether such a substantial maritime relationship existed: (1) The functions and roles of the parties; (2) the types of vehicles and instrumentalities involved; (3) the causation and type of injury; and (4) traditional concepts of the role of admiralty law. After a review of these factors, the Court was “unable to say that the circumstances surrounding the incident which gave rise to this action had a substantial maritime relationship.” 644 F.2d at 1136. In large part, Sohyde Drilling is inapposite to the issue before this Court — whether Pippen was engaged in maritime employment at the time of his injury and thus satisfies the status test of the LHWCA. The question facing the Sohyde Drilling Court was whether the wrong asserted — the injury complained of — bore a significant relationship to maritime activity. This Court need not decide whether Pippen’s injury bore a significant relationship to maritime activity. Rather, we must decide whether the work in which Pippen was engaged at" }, { "docid": "15773045", "title": "", "text": "JOHN R. BROWN, Circuit Judge: Appellants, Sohyde Drilling and Marine Co. (Sohyde) and others, appeal from an adverse judgment by the District Court which found them liable to Appellee, Coastal States Gas Producing Co. (Coastal), for property damages arising out of the blowout of Coastal’s high pressure gas well. The blowout occurred while Sohyde was performing workover operations on the well aboard its submersible drilling barge which, at the time, was resting on the bottom of a dead-end dredged canal slip in Louisiana. Because we find that the District Court improperly assumed admiralty jurisdiction in this case, we vacate and remand. Blowout In The Marsh The essential facts of this case are not in dispute. In 1971, Coastal was the operator of a high pressure gas well which was dually completed so that production was being obtained from two separate producing zones. The well was located within the State of Louisiana, approximately six miles south of the town of Delcambre, in a dead-end dredged canal slip approximately eight feet deep and 120 feet wide. The slip was connected to the Intracoastal Waterway and Vermillion Bay by navigable canals and was accessible only by water transportation such as barges, crew boats or sea planes— the nearest solid ground being approximately two miles away. In June 1971, Coastal determined' that damaged tubing in the well was causing gas to leak from the lower producing zone to the upper zone. On July 7, 1971, Coastal contracted with Sohyde to perform work-over operations on the well. Thereafter, Sohyde towed a submersible drilling barge, the Sohyde 28, onto location, submersed it to the bottom of the canal, and commenced operations. On July 13, during the course of operations, the well blew out and ultimately caught on fire, causing extensive damage. Following the well blowout, various claims, counter-claims and cross-claims ensued. Ultimately all of these actions, including Jones Act claims, were settled, save claims by Coastal against Sohyde and its liability insurers — Market Insurance Co. and Employers Surplus Lines Insurance Co. Coastal’s claims were solely for property damages arising out of the well blowout, including" } ]

[ { "docid": "22292095", "title": "", "text": "and has explained its decision,” (2) if “the agency has relied on documents not in the record,” (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.” Southwest Ctr., 100 F.3d at 1450 (internal citation and quotation marks omitted). These limited exceptions operate to identify and plug holes in the administrative record. Though widely accepted, these exceptions are narrowly construed and applied. See, e.g., Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (holding that a reviewing court may require supplementation of the administrative record if it is incomplete); USA Group Loan Servs., Inc. v. Riley, 82 F.3d 708, 715 (7th Cir.1996) (holding that a “court is supposed to make its decision on the basis of the administrative record,” but that “[t]here are exceptions”) (citing Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), amended by, 867 F.2d 1244 (1989)). The scope of these exceptions permitted by our precedent is constrained, so that the exception does not undermine the general rule. Were the federal courts routinely or liberally to admit new evidence when reviewing agency decisions, it would be obvious that the federal courts would be proceeding, in effect, de novo rather than with the proper deference to agency processes, expertise, and decision-making. Here, the risks presented by the supplemental evidence are serious, because the evidence purports to show that the risk of toxic sediment transport would be increased by the Project, thereby creating risks to the public downstream. Yet it is not entirely clear that Lands Council could not have moved the agency to supplement its record with this evidence. Given the difficulty of this issue, we decline to answer it without necessity. We need not address the extra-record evidence issue because we have determined that there are other bases for reversing the district court and enjoining the Project. The Lands Council’s arguments and evidence can be submitted to the Forest Service, and be made part of the administrative record, if and when the Forest Service" } ]

[ { "docid": "4534160", "title": "", "text": "APA requires agencies to provide notice of proposed rulemaking that contains “either the terms or substance of the proposed rule or description of the subjects and issues involved.” 5 U.S.C. § 553(b). Following notice, “the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.” Id. § 553(c). As we stated in Prometheus I, “ ‘the adequacy of the notice must be tested by determining whether it would fairly apprise interested persons of the ‘subjects and issues’ before the agency.’ ” 373 F.3d at 411 (citing Am. Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3d Cir.1977)). To assess whether the public was fairly apprised of a new rule, a reviewing court asks “whether the purposes of notice and comment have been adequately served.” Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994) (internal quotation and citation omitted); see also Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1186 (9th Cir.2002). Among the purposes of the APA’s notice and comment requirements are “(1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.” Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C.Cir.2005). In addition, “a chance to comment ... [enables] ‘the agency [to] maintain[ ] a flexible and open-minded attitude towards its own rules.’ ” McLouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1325 (D.C.Cir.1988) (internal citation omitted). To achieve those purposes, there must be an exchange of views, information, and criticism between interested persons and the agency.... Consequently, the notice required by the APA ... must disclose in detail the thinking that has animated the form of a proposed rule and the data upon which that rule is based.... [A]n agency proposing informal rulemaking has an obligation to" }, { "docid": "21607963", "title": "", "text": "decision, we nonetheless find that opinion instructive. In addition, there are, as the Boron court stated, numerous cases in which the courts have held that a federal employee may not be compelled to obey a subpoena contrary to the agency’s instructions under valid agency regulations. See, e.g., Swett v. Schenk, 792 F.2d 1447 (9th Cir.1986); Giza v. Department of Health Education & Welfare, 628 F.2d 748 (1st Cir.1980). In any event, the issue as framed by the parties before us is whether the agency’s decision was arbitrary, capricious, or an abuse of discretion, see 5 U.S.C. § 706(2)(A) (1982); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (per curiam), and whether it was rationally connected to the facts and in accordance with the law, see Shane Meat Co. v. United States Department of Defense, 800 F.2d 334, 336 (3d Cir.1986). Chong counsels that where the regulations which provide the governing law vest the agency with “rather broad discretion,” our scope of review is “severely limited.” Chong, 821 F.2d at 176. We are only free to determine whether the agency followed its own guidelines or committed a clear error of judgment. See Overton Park, 401 U.S. at 416, 91 S.Ct. at 823. The record makes clear that the EPA recognized and considered the factors set forth in 40 C.F.R. § 2.401(c) in making its decision. Both of the EPA’s letters denying Appellants’ request expressly articulate the EPA’s concern that permitting Erdman to testify as a witness for the Appellants would make it appear that the agency was taking sides in the litigation, the concern that the cumulative effect of allowing such testimony would constitute a drain on EPA resources, and the conclusion that such testimony was not in the EPA’s interest. In essence, Appellants’ argument that EPA did not follow its own regulatory criteria reduces to the argument that they do not agree with the EPA’s decision. While we may not have made the same decision as the EPA did, we are not free to substitute our judgment for that of the" }, { "docid": "750896", "title": "", "text": "“review the whole record” in determining the validity of a regulation, 5 U.S.C. § 706, and that the “whole record” consists solely of the administrative rulemaking record. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 420, 91 S.Ct. 814, 825, 826, 28 L.Ed.2d 136 (1971). Litigation affidavits, such as those presented by plaintiff, are merely “post hoc ” rationalizations and. do not constitute the “ ‘whole record’ compiled by the agency____” Overton Park, supra, at 419, 91 S.Ct. at 825 (citations omitted). Plaintiff contends that the proffered affidavits (1) set forth basic accounting principles available to the agency during the rulemaking and (2) in part merely re-tabulate the actual Westat data which the agency used as the basis for the rule. But this does not satisfy the requirement of being the “whole record” before the agency. Alternatively, plaintiff urges that we may consider these affidavits, though outside the administrative record, based on certain exceptions; if the materials postdating the rule (1) clarify or explain the original information before the agency, Association of Pacific Fisheries v. EPA, 615 F.2d 794, 811 (9th Cir.1980); or (2) show that the agency’s assumptions were fictional or without scientific support, id..; or (3) will assist the court in determining whether the agency considered all the relevant factors. Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C.Cir.1981). We are not persuaded by plaintiff’s suggestions. Indeed, in Environmental Defense Fund, supra, at 285-286, cited by plaintiff, the District of Columbia Circuit Court found that the motion to strike litigation affidavits of affiants who were neither employees of EPA nor participants in the agency actions to have been properly granted. See also Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980), also cited by plaintiff (“[W]e think the district court went too far in its consideration of evidence outside the administrative record.”) Presented with similar matter, Judge Fullam found that the lengthy affidavits detailing additional flaws in the Westat study were not properly before the court." }, { "docid": "4534159", "title": "", "text": "H.R. 4835, 110th Cong. (2007). On December 17, 2007, a bipartisan group of 25 Senators urged the FCC to delay its vote scheduled for the next day “to provide a reasonable period for comment” “that would normally accompany a rule change of this type,” and threatened to revoke the new NBCO rule legislatively if the vote went ahead. The hours before the final vote were a scramble. The 2008 Order was not circulated to the Commissioners until 9:44 p.m. the night before the vote. Even that draft had sections missing. The Commissioners received a new version of the NBCO rule at 1:57 a.m. on the day of the vote. At 11:12 a.m. that same morning, another version of the NBCO rule was circulated that contained revisions to the four-factor test that would be employed in every case. Nevertheless, later that same day the Commission, by a three to two vote, adopted the 2008 Order and the Diversity Order. B. The FCC Failed to Meet the APA Notice and Comment Standard 1. The APA Standard The APA requires agencies to provide notice of proposed rulemaking that contains “either the terms or substance of the proposed rule or description of the subjects and issues involved.” 5 U.S.C. § 553(b). Following notice, “the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.” Id. § 553(c). As we stated in Prometheus I, “ ‘the adequacy of the notice must be tested by determining whether it would fairly apprise interested persons of the ‘subjects and issues’ before the agency.’ ” 373 F.3d at 411 (citing Am. Iron & Steel Inst. v. EPA, 568 F.2d 284, 293 (3d Cir.1977)). To assess whether the public was fairly apprised of a new rule, a reviewing court asks “whether the purposes of notice and comment have been adequately served.” Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994) (internal quotation and citation omitted); see also Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1186 (9th Cir.2002). Among the" }, { "docid": "21289093", "title": "", "text": "is arbitrary and capricious because it is based on faulty assumptions about the efficacy of the American and Canadian feed and import restrictions. As we evaluate each argument under this claim, we will consider whether R- CALF’s new evidence is relevant to our review. It is an established rule that “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Under limited circumstances, however, extra-record evidence can be admitted and considered. At the district court level, extra-record evidence is admissible if it fits into one of four “narrow” exceptions: (1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) if the agency has relied on documents not in the record, (3) when supplementing the record is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a showing of agency bad faith. Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (internal punctuation omitted). R-CALF also relies heavily on one statement in the case law that extra-record information might be admitted if it tends to show that the agency relied on assumptions that were “entirely fictional or utterly without scientific support.” Ass’n of Pac. Fisheries v. E.P.A., 615 F.2d 794, 812 (9th Cir.1980). In Asarco, Inc. v. U.S. E.P.A., 616 F.2d 1153 (9th Cir.1980), the benchmark case on this issue in this circuit, the district court had held a four-day hearing, which included testimony from two experts who had not helped the agency make the challenged decision. This court disapproved because this testimony was “plainly elicited for the purpose of determining the scientific merit of the EPA’s decision.” Id. at 1161. Considering evidence outside this record is inappropriate, we explained, because it “inevitably leads the reviewing court to substitute its judgment for that of the agency.” Id. at 1160. Under the APA, courts must refrain from de novo review of the" }, { "docid": "7560611", "title": "", "text": "its reasons for considering this evidence, which was not included in the record. When reviewing an agency action, the district court “will engage in a substantial inquiry, but it must not substitute its own judgment for that of the Agency.” Abramowitz v. United States EPA 832 F.2d 1071, 1075 (9th Cir.1987). In most cases, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). “This standard of review is applicable to review of agency action under NEPA.” Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir.1988), amended, 867 F.2d 1244 (9th Cir.1989). “However, certain circumstances may justify expanding review beyond the record or permitting discovery.” Id. For example, “an allegation that an EIS has failed to mention a serious, environmental consequence may be sufficient to permit the introduction of new evidence outside of the administrative record____” Id. at 1437 (citing County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1384-85 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978)). In that case, we explained: the district court may extend its review beyond the administrative record and permit the introduction of new evidence in NEPA cases where the plaintiff alleges “that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug.” Id. (quoting County of Suffolk, 562 F.2d at 1384-85 (citations omitted)). We discussed this exception in Animal Defense Council but found the exception inapplicable on the facts. Id. Moreover, review of matters beyond the administrative record may be appropriate where special review procedures are prescribed by Congress. See Public Power Council v. Johnson, 674 F.2d 791, 794-95 (9th Cir.1982). In Johnson, the court had original jurisdiction under 16 U.S.C. § 839(e)(5) (1988), which “streamlined judicial review to facilitate further the urgent reallocation of power.” Id. at 795. There, this court allowed limited discovery of" }, { "docid": "3509199", "title": "", "text": "standards for approval.’ ” City of Albuquerque v. Browner, 97 F.3d 415, 425 (10th Cir.1996) (quoting Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395, 1401 (4th Cir.1993)). Therefore, the EPA has a limited role in reviewing water quality standards. Id. (“Congress clearly intended the EPA to have a limited, non-rulemaking role in the establishment of water quality standards by states....”). C. Antidegradation The antidegradation review policies adopted by the states as a part of then-water quality standards must be consistent with the federal antidegradation policy. 40 C.F.R. § 131.12. The EPA’s regulations establish three levels of water quality protection: Tier I, Tier II, and Tier III. Tier I protection establishes the minimum water quality standard for all waters and requires that “[e]xisting instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.” 40 C.F.R. § 131.12(a)(1). Tier II protection provides that, where the water quality of a water body exceeds that necessary to support aquatic life and recreation, that level of water quality shall be maintained unless the state determines that “allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.” 40 C.F.R. § 131.12(a)(2). Tier III protection provides that, where a water body “constitute^] an outstanding National resource, such as waters of National and State parks and wildlife refuges and wa ters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.” 40 C.F.R. § 181.12(a)(3). D. Mixing Zones Pursuant to the EPA’s regulations, a state may, at its discretion, include within its water quality standards “policies generally affecting ... mixing zones.” 40 C.F.R. § 131.13. Mixing zones are “areas where an effluent discharge undergoes initial dilution and are extended to cover the secondary mixing in the ambient water body. A mixing zone is an allocated impact zone where acute and chronic water quality criteria can be exceeded as long as a number of protections are maintained.” Environmental Protection Agency, Water Quality Standards Handbook § 5.1.1, at 5-5 (2d ed.1994) (hereinafter" }, { "docid": "5147969", "title": "", "text": "the state of the administrative record only for clear error. Fort Sumter Tours, Inc. v. Babbitt, 66 F.3d 1324, 1335-36 (4th Cir.1995); Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 339-40 (D.C.Cir.1989). The APA requires courts to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. Ordinarily, courts confine their review to the “administrative record.” Edison Elec. Inst. v. OSHA, 849 F.2d 611, 617-18 (D.C.Cir.1988). The administrative record includes all materials “compiled” by the agency, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), that were “before the agency at the time the decision was made,” Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981). Madison concedes that the banks’ files were not part of the administrative record compiled by the agency when the Senior Deputy Comptroller declared the banks insolvent. Madison also fails to demonstrate the existence of any of the factors we have previously recognized as requiring district courts to supplement the administrative record. Madison does not contend that the agency deliberately or negligently excluded documents that may have been adverse to its decision. See Kent County v. EPA, 963 F.2d 391, 395-96 (D.C.Cir.1992). Nor has Madison shown that the district court needed to supplement the record with “background information” in order to determine whether the agency considered all of the relevant factors. Environmental Defense Fund, Inc., 657 F.2d at 285 (citing Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980)). This is not a case where the agency failed “ ‘to explain administrative action [so] as to frustrate effective judicial review.’” Id. (quoting Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). To the contrary, the record contains detailed contemporaneous reports from the examiner-in-charge and members of her examination team explaining how and why they reached their conclusions regarding the banks’ reserves. Madison claims that the agency acted in bad faith in declaring the banks insolvent. It relies on affidavits of two former officers and a consultant Madison had" }, { "docid": "13798075", "title": "", "text": "being covered by the general permit. Ill A Under the Administrative Procedures Act, the EPA must provide the public with notice and an opportunity to comment before it issues NPDES permits. 5 U.S.C. § 553(b)-(c); 40 C.F.R. §§ 124.6(d), 124.10(a)(l)(ii), (b); see also NRDC v. EPA, 863 F.2d 1420, 1428-29 (9th Cir.1988) (applying notice and comment requirement to general NPDES permit). Like other agencies, the EPA “must provide notice sufficient to fairly apprise interested persons of the subjects and issues before the Agency.” Id. at 1429 (internal quotation marks and citations omitted). Of course, the final permit issued by the agency need not be identical to the draft permit. That would be antithetical to the whole concept of notice and comment. Indeed, it is “the expectation that the final rules will be somewhat different and improved from the rules originally proposed by the agency.” Trans-Pac. Freight Conference v. Fed. Mar. Comm’n, 650 F.2d 1235, 1249 (D.C.Cir.1980). Thus, “[t]he law does not require that every alteration in a proposed rule be reissued for notice and comment.” First Am. Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008, 1015 (D.C.Cir.2000). However, “a final rule which departs from a proposed rule must be a logical outgrowth of the proposed rule.... The essential inquiry focuses on whether interested parties reasonably could have anticipated the final rulemaking from the draft permit.” NRDC v. EPA, 863 F.2d at 1429 (internal quotation marks and citations omitted); see also 40 C.F.R. § 124.10 (setting forth specific public notice and comment requirements for the EPA). In determining this, one of the salient questions is “whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule.” Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994); see also Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992); Am. Med. Ass’n v. United States, 887 F.2d 760, 768 (7th Cir.1989) (stating that “the relevant inquiry is whether or not potential commentators would have known that an issue in which they were" }, { "docid": "13798076", "title": "", "text": "First Am. Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008, 1015 (D.C.Cir.2000). However, “a final rule which departs from a proposed rule must be a logical outgrowth of the proposed rule.... The essential inquiry focuses on whether interested parties reasonably could have anticipated the final rulemaking from the draft permit.” NRDC v. EPA, 863 F.2d at 1429 (internal quotation marks and citations omitted); see also 40 C.F.R. § 124.10 (setting forth specific public notice and comment requirements for the EPA). In determining this, one of the salient questions is “whether a new round of notice and comment would provide the first opportunity for interested parties to offer comments that could persuade the agency to modify its rule.” Am. Water Works Ass’n v. EPA, 40 F.3d 1266, 1274 (D.C.Cir.1994); see also Anne Arundel County v. EPA, 963 F.2d 412, 418 (D.C.Cir.1992); Am. Med. Ass’n v. United States, 887 F.2d 760, 768 (7th Cir.1989) (stating that “the relevant inquiry is whether or not potential commentators would have known that an issue in which they were interested was ‘on the table’ ”). On a petition for review from an agency decision, we determine in the first instance the adequacy of the agency’s notice and comment procedure, without deferring to an agency’s own opinion of the adequacy of the notice and comment opportunities it provided. NRDC v. EPA, 863 F.2d at 1428-29. A decision made without adequate notice and comment is arbitrary or an abuse of discretion. See 5 U.S.C. § 706(2)(A). B In this instance, we conclude that the EPA’s notice and comment procedure was inadequate because it did not afford interested parties the opportunity to comment on whether Alaska’s proposed change in the zone of deposit definition conformed to the substantive requirements of Alaska law and, if not, whether the change required the issuance of a conditional permit or the denial of the permit altogether. Under the CWA, the EPA has its own independent obligation to determine whether a permit will comply with the state’s water quality standards. See 33 U.S.C. §§ 1311(b)(1)(C), 1342(a)(1); 40 C.F.R. § 122.4(d); Dubois v." }, { "docid": "13798079", "title": "", "text": "Department has changed its approach to the authorized Zone of Deposit for bark and wood debris from the approach contained in the ATTF Guidelines, which has been used for authorizing ZODs since the guidelines were developed. We understand that the Department intends to authorize a ZOD equal to the size of each LTF’s project area and that the Department does not intend to limit the project area to a specified, maximum size nor impose limiting criteria that would serve to maintain or contain the size of the project area throughout the term of the permit. In the draft final certification, the Department indicates that it will require Remediation Plans from permit-tees if the continuous coverage of bark and wood debris exceeds one acre and 10 centimeters at any point. However, the one acre/10 centimeter trigger is not a violation of the ZOD nor the State’s water quality standard for residue, thus, it is not a limit on the ZOD. Because the proposed “project area ZOD” is less stringent than previous ZODs for LTFs, in accordance with 40 C.F.R. § 124.53(e)(3), EPA requests a statement from the Department explaining how the proposed ZOD complies with state law. The Department should include in the statement how the ZOD meets its antidegradation policy at 18 AAC 70.015, and explain how the ZOD will protect beneficial uses found at 18 AAC 70.020(b)(2). The Department also needs to address how it is meeting the requirement in 18 AAC 70.210(a) that the “limit” of the ZOD be set by the Department. Upon reviewing Alaska’s response, the EPA issued a final permit approving Alaska’s new zone of deposit definition. However, the public was never notified that Alaska was proposing to redefine the allowable zone of deposit, nor was the public afforded the opportunity to comment on the proposed change, either at the state or federal level. In determining the adequacy of EPA’s notice and comment procedure as to this issue, the salient question is, as we have noted, “whether interested parties reasonably could have anticipated the final rule-making from the draft permit.” NRDC v. EPA, 863 F.2d" }, { "docid": "22445120", "title": "", "text": "may justify expanding review beyond the record or permitting discovery. See, e.g., Public Power Council v. Johnson, 674 F.2d 791, 793 (9th Cir.1982). The district court may inquire outside the administrative record when necessary to explain the agency’s action. Id. at 793-94. When such a failure to explain agency action effectively frustrates judicial review, the court may “obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.” Camp v. Pitts, 411 U.S. 138, 143, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The court’s inquiry outside the record is limited to determining whether the agency has considered all relevant factors or has explained its course of conduct or grounds of decision. Hintz, 800 F.2d at 829. The district court may also inquire outside of the administrative record “when it appears the agency has relied on documents or materials not included in the record.” Id. In addition, discovery may be permitted if supplementation of the record is necessary to explain technical terms or complex subject matter involved in the agency action. Id. The Council does not argue that the Bureau’s action cannot be explained on the basis of the administrative record. Here, the administrative record was fully developed and open for public comment prior to the Bureau’s decision to select the West Side Plan. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (where no formal findings made by administrator, a court may examine information outside of the administrative record). Rather, the Council contends that the Bureau ignored or inadequately explored information presented to it. The Council cites the information presented by Dr. Cluff regarding groundwater recharge and available information from the Environmental Protection Agency (EPA) concerning the health risks attendant to water purification as two instances of information ignored or inadequately discussed by the Bureau in its EIS. The Council relies on the Second Circuit decision County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238," }, { "docid": "8495627", "title": "", "text": "challenging the OPM’s December 2, 1993, action as arbitrary and capricious or otherwise contrary to law, the motion to compel is not properly before the Court and also is denied as moot. Discussion Motion To Exclude This case arises under the Administrative Procedure Act (the APA), 5 U.S.C. § 702 et seq. Review under the APA is limited to the administrative record that was before the decision-making agency and may not include a new record constructed by the reviewing court. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). “If a court is to review an agency’s action fairly, it should have before it neither more nor less information than did the agency when it made its decision.” Walter O. Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 792 (D.C.Cir.1984); see also Doraiswamy v. Secretary of Labor, 555 F.2d 832, 839-40 (D.C.Cir.1976); Polcover v. Secretary of Treasury, 477 F.2d 1223, 1226 (D.C.Cir.1973) (recognizing that a district court’s review is limited to the agency record submitted and that “[n]o de novo evidentiary hearing is permitted”), cert. denied, 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973). A court may consider evidence outside the administrative record “for the limited purposes of ascertaining whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision.” Asarco, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir.1980) (citing Association of Pacific Fisheries v. EPA, 615 F.2d 794, 811 (9th Cir.1980)). Courts admit outside evidence primarily as a means of requiring an agency to explicate its own reasoning when the record is unclear. See Asarco, 616 F.2d at 1159 (“any additional material should be explanatory in nature, such as requiring the involved administrative officials to demonstrate the basis for their action”); see also Camp, 411 U.S. at 142-43, 93 S.Ct. at 1244 (remedy for unclear record is to obtain from the agency additional explanation of the reasons for decision); Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971) (court may require the" }, { "docid": "21951141", "title": "", "text": "operating with a serious backlog of mandatory duties, resulting in a diversion of scarce resources away from conservation efforts. Based on this analysis, we defer to the agency interpretation of the regulations and conclude that the Service is not required to ensure compliance with federal and state law before issuing an ITS. IV Finally, we address the district court’s decision to strike fifteen exhibits offered by CBD because the documents were not part of the administrative record. When reviewing an agency decision, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); see also Sw. Ctr. for Biological Diversity v. United States Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996) (citing Camp). Parties may not use “post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision.” Ass’n of Pac. Fisheries v. EPA, 615 F.2d 794, 811-12 (9th Cir.1980). We have recognized four exceptions to this rule, allowing extra-record materials (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision, (2) when the agency has relied on documents not in the record, [ ] (3) when supplementing the record is necessary to explain technical terms or complex subject matter, [or] ... (4) when plaintiffs make a showing of agency bad faith. Sw. Center, 100 F.3d at 1450(internal quotation marks omitted). CBD has not alleged agency bad faith or that the Service relied on documents not in the record. CBD claims that the documents it offered were submitted for their persuasive force to explain the term “take” under state law and to show that the Service failed to consider a relevant factor during its deliberations. We normally refuse to consider evidence that was not before the agency because “it inevitably leads the reviewing court to substitute its judgment for that of the agency.” Asarco, Inc. v. EPA 616 F.2d 1153, 1160(9th Cir.1980). When an agency’s inquiry is inadequate, we generally “remand the" }, { "docid": "23199568", "title": "", "text": "See E. I. DuPont de Nemours & Co. v. Train, supra, 383 F.Supp. at 1253-1254. Cf. Leg.Hist. 1503. We conclude that the position chosen by the EPA “was ‘correct,’ to the extent that it can be said with complete assurance that any particular interpretation of a complex statute such as this is the ‘correct’ one.” Train v. Natural Resources Defense Council, Inc., supra, 421 U.S. at 87, 95 S.Ct. 1470, 1485, 43 L.Ed.2d 731. We therefore sustain EPA’s interpretation of the statute, and find that it had the authority to issue effluent limitations under § 301 and that we have the authority to review the regulations under § 509(b)(1). II. The Standard of Review We begin our discussion of the merits by noting the relevant standard of review. Under § 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), agency action in an informal rulemaking proceeding is to be sustained unless “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See also Camp v. Pitts, 411 U.S. 138, 141-142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). This standard requires us to determine whether “the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). We are not to set the effluent limitations ourselves or substitute our judgment for the agency’s. Id.; Portland Cement Association v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375, 402 (1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Rather, we are to determine whether the limitations set by the agency are “the result of reasoned decision-making.” Essex Chemical Corp. v. Ruckelshaus, 158 U.S.App.D.C. 360, 486 F.2d 427, 434 (1973), cert. denied sub nom., Appalachian Power Company v. EPA, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974). If the basis stated by the agency for its decision is insufficient, we may not supply another that the agency itself has not chosen to rely on. SEC v. Chenery" }, { "docid": "11839871", "title": "", "text": "no notice as to application of the Final Rule to all new wells is to no avail. Accordingly, they have waived this argument. See Tex Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C.Cir.1991) (per curiam) (\"a party must initially present its comments to the agency during the rulemaking in order for the court to consider the issue\"); see also Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973) (reviewing court ought not rely on materials outside the record in applying the arbitrary and capricious standard). The Sierra Club, on the other hand, complains that it was improper for the EPA even to consider costs in the course of its rulemak-ing. However, agencies are permitted to consider costs unless the relevant statute expressly prohibits it. Michigan v. EPA, 213 F.3d 663, 678 (D.C.Cir.2000) (per curiam). Although the SDWA does not require cost consideration, it does not prohibit it either. . Each party had ample opportunity to address this issue in the round of letter briefs following oral argument. Letter briefs were submitted by the EPA, the County, and the Municipalities. For whatever reason, Sierra Club chose not to submit a letter brief. . The Sierra Club also argues that the change from a mandatory demonstration of non-endangerment to monitoring at the discretion of the Florida director constitutes a \" 'marked shift in emphasis between the proposed regulations and the final rules' \" and, as such, \"is not a 'logical outgrowth’ of the proposed rule.” Sierra Club Br. at 48 (quoting Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C.Cir.1991) (per curiam)). More specifically, Sierra Club argues that proposed Options 1 and 2 would have required \"a pre-injection demonstration confirming that fluids violating National Primary Drinking Water Standards and other public health standards would not migrate into and contaminate USDWs,” and that elimination of the demonstration requirement represented a \"radical shift away from USDW protection” afforded by the proposed rule. Id. at 48-49 (citing Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1188 (9th Cir.2002)). As discussed, because of (1) the particular role" }, { "docid": "23685959", "title": "", "text": "1401 (9th Cir.1995). The arbitrary and capricious standard is “highly deferential, presuming the agency action to be valid and [requires] affirming the agency action if a reasonable basis exists for its decision.” Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir.2000) (quotations and citations omitted). Under such deferential review, we may not substitute our judgment for that of the agency. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). Unlike substantive challenges, however, our review of an agency’s procedural compliance is exacting, yet limited. See Coalition For Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 457 (6th Cir.2004) (citing Natural Res. Def. Council, Inc. v. SEC, 606 F.2d 1031, 1045, 1048-49 (D.C.Cir.1979)); Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 116 (1st Cir.2002). We review de novo but are limited to ensuring that “ ‘statutorily prescribed procedures have been followed.’ ” Campanale & Sons, 311 F.3d at 116 (quoting Natural Res. Def. Council, Inc., 606 F.2d at 1045). Further, we determine “the adequacy of the agency’s notice and comment procedure, without deferring to an agency’s own opinion of the ... opportunities it provided.” Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1186 (9th Cir.2002). IV. Discussion A. Notice and Comment for New Studies Integral to an agency’s notice requirement is its duty to “identify and make available technical studies and data that it has employed in reaching the decisions to propose particular rules. An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary.” Solite Corp. v. EPA 952 F.2d 473, 484 (D.C.Cir.1991) (quotations, punctuation, and citation omitted). Yet, “[n]othing prohibits [an ajgency from adding supporting documentation for a final rule in response to public comments.” Rybachek v. EPA, 904 F.2d 1276, 1286 (9th Cir.1990). After publishing a proposed rule, agencies often receive new information, which in turn improves the accuracy of agency action: It is perfectly predictable that new data will come in during the comment period, either submitted" }, { "docid": "13676668", "title": "", "text": "the administrative record already in existence.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Therefore, if \"there is a contemporaneous administrative record and no need for additional explanation of the agency decision,” we will permit supplementation of the administrative record only where there is a \"strong showing of bad faith or improper behavior.” Newton Cnty. Wildlife Ass’n v. Rogers, 141 F.3d 803, 807 (8th Cir.1998) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The rationale for this rule is that judicial review of the reasonableness of an agency's actions should concentrate upon the evidence available to the agency when making its decision. See Robinette v. Comm’r, 439 F.3d 455, 459 (8th Cir.2006). But where, as here, rulemaking masquerading as explication is alleged, the informality of the agency's decisionmaking process makes the possibility of a sparse \"contemporaneous administrative record” more likely. While we question whether the Camp standard would necessarily apply to such challenges under APA section 706(2)(D), we need not decide the matter because we reached our conclusions without resort to the League’s proposed supplementary materials. Therefore, we deny the League's motion to supplement the record. . League Question: \"Is the permitted use of ACTIFLO or other similar peak flow treatment processes to augment biological treatment subject to a 'no feasible alternatives' demonstration?” EPA Response: \"Yes.” The EPA insists that this challenge is time-barred because the proper time to raise the challenge was in 2005. We find this contention unpersuasive because prior to the September 2011 letter, the EPA never indicated that the 2005 policy became final. For example, the June 1, 2010 Federal Register notice explained that the EPA was continuing to \"solicit[] input from the general public concerning the impact of the proposed rule.” 75 Fed.Reg. 30,-395, 30,401 (June 1, 2010). Even the June 2011 letter explained that the agency was “continu[ing] to consider whether the 2005 Policy should be finalized or incorporated into the EPA’s other potential wet weather rulemaking effort announced June 1, 2010 in the Federal Register.”" }, { "docid": "13798080", "title": "", "text": "with 40 C.F.R. § 124.53(e)(3), EPA requests a statement from the Department explaining how the proposed ZOD complies with state law. The Department should include in the statement how the ZOD meets its antidegradation policy at 18 AAC 70.015, and explain how the ZOD will protect beneficial uses found at 18 AAC 70.020(b)(2). The Department also needs to address how it is meeting the requirement in 18 AAC 70.210(a) that the “limit” of the ZOD be set by the Department. Upon reviewing Alaska’s response, the EPA issued a final permit approving Alaska’s new zone of deposit definition. However, the public was never notified that Alaska was proposing to redefine the allowable zone of deposit, nor was the public afforded the opportunity to comment on the proposed change, either at the state or federal level. In determining the adequacy of EPA’s notice and comment procedure as to this issue, the salient question is, as we have noted, “whether interested parties reasonably could have anticipated the final rule-making from the draft permit.” NRDC v. EPA, 863 F.2d at 1429. Given that the draft permit specifically referenced Alaska’s proposed “one-acre zone of deposit” and conformance with the ATTF guidelines, interested parties could not have reasonably anticipated that the final permit would sanction the use of project-area zones of deposit that could exceed one acre. The fact that interested parties did not anticipate the paradigm shift from the draft to the final permit is underscored by the contents of the instant petition for review, which raises for the first time numerous issues about the proposed change in the conception of zones of deposit. These are precisely the type of comments that should have been directed in the first instance to the EPA, but which understandably were not because of the inadequate notice. Because the EPA’s change of position from the draft permit was not “foreshadowed in proposals and comments advanced during the rulemaking,” S. Terminal Corp. v. EPA, 504 F.2d 646, 658 (1st Cir.1974), the “decision clearly caught petitioners ... by surprise,” Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 446-47 n." }, { "docid": "15192038", "title": "", "text": "401 from the relevant state authority in lieu of conducting its own independent analysis. This certification was issued by Alaska’s Department of Environmental Conservation on August 9, 2006. Although BSC argues that the Alaska Department of Environmental Conservation’s certification does not include consideration of the underground injection system to be used at the site, the certification mentions that system, and the Alaska Department of Environmental Conservation was aware of it when issuing the certification. Under the Corps’ regulations, the certification is conclusive with respect to water quality considerations. Hintz, 800 F.2d at 834. The Corps was not required to undertake the additional analysis that BSC raises, and in any case the Corps included a sufficient discussion of water quality effects in the PEDD. The Corps’ determination that the Rock Creek Mining Project would not “cause or contribute to significant degradation of the waters of the United States” was neither arbitrary and capricious, nor contrary to law. C BSC next argues that the Corps did not require the appropriate mitigation measures required by the CWA. 40 C.F.R. § 230.10 requires that the Corps include “appropriate and practicable” mitigation measures in permits issued under § 404 of the CWA. 40 C.F.R. § 230.10(d); see also 33 C.F.R. § 320.4(r) (explaining the general mitigation policy). BSC contends that the Corps did not implement all of the mitigation measures suggested by the EPA. However, the record demonstrates that “the Corps eonsid-ered[EPA’s] initial concerns, addressed them, and explained why it found them unpersuasive.” Cal. Trout v. Schaefer, 58 F.3d 469, 475 (9th Cir.1995) (internal quotation marks and citation omitted). The Corps implemented all of the EPA’s concrete conditions in the permit and rejected only the more general statements from EPA, the substance of which were addressed elsewhere in the PEDD. The permit includes an array of required mitigation measures, and the Corps has explained its rejection of the other measures considered. BSC also contends that the mitigation measures provided in the permit are insufficient because some mitigation measures have not been fully developed. Specifically, BSC urges that the permit condition requiring that AGC meet with" } ]

[ { "docid": "5097945", "title": "", "text": "(1st Cir.1994) (compensatory legal damages do not fall within “appropriate equitable relief’ authorized by § 1132(a)(3) of ERISA). All of the federal appellate courts which have considered the matter have held that there is no right to a jury trial on ERISA claims. See, e.g., Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir.) (no right to jury trial of ERISA actions seeking restitution), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); Cox v. Keystone Carbon Co., 894 F.2d 647, 649-50 (3rd Cir.) (plaintiff not entitled to jury trial on claim for benefits, and claim for compensatory damages for tortious interference does not fall within § 1132(a)(1)(B) of ERISA), cert. denied, 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990); Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1007 (4th Cir.1985) (proceedings to determine rights under employee benefit plans are equitable in character); Borst v. Chevron Corp., 36 F.3d 1308, 1323-23 (5th Cir.1994) (request for monetary recovery constituted action for restitution, and thus, action is not legal in nature), reh’g en banc denied, 42 F.3d 639, cert. denied, — U.S. -, 115 S.Ct. 1699, 131 L.Ed.2d 561 (1995); Bair v. General Motors Corp., 895 F.2d 1094, 1096-97 (6th Cir.1990) (action seeking reinstatement and payments due is equitable); Houghton v. SIPCO, Inc., 38 F.3d 953, 957 (8th Cir.1994) (district court committed reversible error by submitting plaintiffs ERISA claims to non-advisory jury and failing to enter own precautionary findings of fact and conclusions of law); Spinelli v. Gaughan, 12 F.3d 853, 858 (9th Cir.1993) (compensatory damages unavailable under § 1132(a)(3) of ERISA); Blake v. Unionmutual Stock Life Ins. Co. of America, 906 F.2d 1525, 1526 (11th Cir.1990) (plaintiffs not entitled to jury trial where claim is for benefits due). Because the relief Stanford seeks is equitable in nature, she is not entitled to a jury trial. It is so ordered." } ]

[ { "docid": "2641616", "title": "", "text": "distinguishable, such that Brandon did not dictate a result in favor of the estate in this case. The district court considered these motions, eventually concluding that Hayes, as the named ERISA beneficiary, was entitled to the proceeds of the life insurance policy. Manning timely appealed. We review the district court’s grant of summary judgment de novo. Clift v. Clift, 210 F.3d 268, at 269-70 (5th Cir.2000). II. Congress passed ERISA in 1974 to. establish a comprehensive federal scheme for the protection of the participants and beneficiaries of employee benefit plans. See 29 U.S.C. § 1001; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 1551, 95 L.Ed.2d 39 (1987); Shaw v. Delta Air Lines Inc., 463 U.S. 85, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). ERISA broadly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). A'law “relates to” an employee benefit plan when the law has “a connection with or reference to such a plan.” Shaw, 103 S.Ct. at 2900. The scope of the ERISA preemption provisions is “deliberately expansive,” and they are consistently construed to accomplish the congressional purpose of insuring certain minimum standards in the administration of employee benefit plans. See Pilot Life Ins., 107 S.Ct. at 1552. There is no doubt that Manning’s claim on behalf of the estate is preempted, to the extent that it relies upon the Texas beneficiary redesignation statute. Almost every circuit court to consider the issue, including this one, has determined that a state law governing the designation of an ERISA beneficiary “relates to” the ERISA plan, and is therefore preempted. See Dial v. NFL Player Supplemental Disability Plan, 174 F.3d 606, 611 (5th Cir.1999); Brandon, 18 F.3d at 1325; see also Metropolitan Life Ins. Co. v. Pettit, 164 F.3d 857, 862 (4th Cir.1998); Mohamed v. Kerr, 53 F.3d 911, 913 (8th Cir.1995); Krishna v. Colgate Palmolive Co., 7 F.3d 11, 15 (2d Cir.1993); Metropolitan Life Ins. Co. v. Hanslip, 939 F.2d 904, 906 (10th Cir.1991); Brown v. Connecticut General Life" }, { "docid": "3101817", "title": "", "text": "Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24 n. 26, 103 S.Ct. 2841, 2854 n. 26, 77 L.Ed.2d 420 (1983) (quoting 120 Cong.Rec. 29942 (1974) (remarks of Senator Javits)); see also Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80 (1989); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557-58, 95 L.Ed.2d 39 (1987). Therefore, for example, in interpreting ERISA plans, we have utilized a federal common law of contract interpretation rather than relegating such interpretative matters to the law of the individual states. See, e.g., Hammond v. Fidelity & Guar. Life Ins. Co., 965 F.2d 428, 430 (7th Cir.1992). However, as the Supreme Court has pointed out to us on more than one occasion, “ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries” in pension and welfare benefit plans. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). The statute’s “six carefully integrated civil enforcement provisions” to remedy ERISA violations, found at 29 U.S.C. § 1132(a), demonstrate the evident care with which the remedial aspects of the statute were crafted. See Pilot Life, 481 U.S. at 54, 107 S.Ct. at 1556. This consideration counsels against our concluding that Congress intended the federal courts to fashion any other remedies. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146, 105 S.Ct. 3085, 3092, 87 L.Ed.2d 96 (1985). More recently, the Supreme Court, in Mertens, made clear that the statute’s detailed enforcement scheme provides “strong evidence that Congress did not intend to authorize other remedies.” — U.S. at -, 113 S.Ct. at 2067 (citing Russell, 473 U.S. at 146-47, 105 S.Ct. at 3092-93). “We have .. / been extremely reluctant to find that ERISA creates certain causes of action by implication in addition to those enumerated in the statute itself.” UIU, 998 F.2d at 512. Rather, mindful of our role as an intermediate appellate court, we have concluded that “because ERISA is a highly technical statute our" }, { "docid": "8966378", "title": "", "text": "standard unless the benefit plan gives the administrator discretionary authority to construe the terms of the plan. Here, the group policy does not grant Metropolitan Life such discretion. Rather, the plan requires the company to pay proceeds to the beneficiary of record. We find no reason to apply an abuse of discretion standard in this action. B. ERISA 1. Preemption in General Both parties agree this case is governed by ERISA. The ERISA preemption clause provides in pertinent part: “[T]he provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan....” 29 U.S.C. § 1144(a). This clause establishes a broad area of exclusively federal concern preempting state law claims that “relate to” an employee benefit plan. See FMC Corp. v. Holliday, — U.S. -, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990). The Supreme Court has stated the preemption clause is “deliberately expansive” and should be given its “broad common-sense meaning.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46-47, 107 S.Ct. 1549, 1552-53, 95 L.Ed.2d 39 (1987) (citing Shaw v. Delta Air Lines, 463 U.S. 85, 97-98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)); see also Settles v. Golden Rule Ins. Co., 927 F.2d 505, 508 (10th Cir.1991). The Supreme Court also has held state common law tort and contract claims for improper processing of benefits claims are preempted by ERISA. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 1545-46, 95 L.Ed.2d 55 (1987); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 57, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). We therefore must determine whether Beatrice Carland's state law claim for wrongful denial of insurance proceeds is preempted and converts to a removable federal ERISA claim over which we may exercise jurisdiction. 2. Conversion of State Law Claims In Metropolitan Life, the Supreme Court explained the relation between ERISA preemption and removal jurisdiction. The Court pointed out that federal preemption is ordinarily a defense to state law claims. Metropolitan Life, 481" }, { "docid": "17435950", "title": "", "text": "governed by ERISA.”); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (Congress drafted ERISA’s “deliberately expansive” language “to ‘establish pension plan regulation as exclusively a federal concern.’ ”) (citing Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981)); District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125, 127, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (“ERISA’s pre-emption provision assures that federal regulation of covered plans will be exclusive.”); Boston Children’s Heart Foundation, Inc. v. Nadal-Ginard, 73 F.3d 429, 439 (1st Cir.1996) (stating Congress drafted the ERISA preemption provision “to ensure uniformity in such plans by preventing states from imposing divergent obligations upon them”) (citations omitted). Applying this legal bulwark, the Court addresses the Defendants’ preemption claim. “ERISA preemption analysis ... involves two central questions: (1) whether the plan at issue is an ‘employee benefit plan’ and (2) whether the cause of action ‘relates to’ this employee benefit plan.” McMahon v. Digital Equip. Corp., 162 F.3d 28, 36 (1st Cir.1998). There is no dispute that the Retirement Plan is an employee benefit plan. As for the second element, courts have interpreted the “relate to” language in ERISA’s preemption provision “in the normal sense of the phrase.... ” Shaw, 463 U.S. at 96-97, 103 S.Ct. 2890. Consequently, “a law ‘relates to’ an employee benefit plan ... if it has a connection with or reference to such a plan.” Id.; see Hampers v. W.R. Grace & Co., Inc., 202 F.3d 44, 52 (1st Cir.2000) (state common law breach of contract claim preempted); McMahon, 162 F.3d at 38 (employee’s state common law claims for, inter alia, breach of contract and interference with advantageous business relationship were preempted); Turner v. Fallon Community Health Plan, Inc., 127 F.3d 196, 198-200 (1st Cir.1997) (finding state common law claim for breach of contract preempted after determining that it fell within ERISA’s exclusive civil enforcement regime). Plaintiff has pled the existence of an ERISA plan in the Complaint, and has alleged that his claim for breach of contract is based" }, { "docid": "14978706", "title": "", "text": "1132(e)(2) (2001) (\"Where an action under this subchapter is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found, and process may be served in any other district where a defendant resides or may be found.”). . See 28 U.S.C. § 1292(b) (2001). The transfer-of-venue issue is therefore not before this Court. . See McNeil v. Time Ins. Co., 205 F.3d 179, 189 (5th Cir.2000). . 29 U.S.C. § 1144(a) (2001). . Pilot Life Ins. Co. v. Dedeaux., 481 U.S. 41, 46, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). . De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 813, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997). . See McClelland v. Gronwaldt, 155 F.3d 507, 516 (5th Cir.1998). . Corporate Health Ins., Inc. v. Tex. Dep’t of Ins., 215 F.3d 526, 533 (5th Cir.2000)(citing DeBuono, 520 U.S. at 814-15, 117 S.Ct. 1747; California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997); and New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)). . DeBuono, 520 U.S. at 813-14, 117 S.Ct. 1747. . Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). . Hook v. Morrison Milling Co., 38 F.3d 776, 781 (5th Cir.1994); Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 245 (5th Cir.1990). ERISA defines \"employer” as \"any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association or employers acting for an employer in such capacity.” 29 U.S.C. § 1002(5). A \"participant” is defined as \"any employee or former employee of an employer ... who is or may become eligible to receive a benefit of any type from an em ployee benefit plan....”" }, { "docid": "20293733", "title": "", "text": "state law relates to an ERISA plan ‘if it has a connection with or reference to such a plan.’ ” Egelhoff v. Egelhoff 532 U.S. 141, 147, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Plaintiff has set forth three separate state law causes of action against Defendants: breach of contract, unfair trade practices and bad faith. (Docket No. 1-1). Defendants maintain that all three of these types of claims are preempted by ERISA. (Docket No. 6). Plaintiff does not specifically contest that her breach of contract and unfair trade practices claims are preempted if the Court determines that the Policy is governed by ERISA; however, she argues that ERISA does not preempt her bad faith claim. (Docket No. 15 at 6-7). The Court agrees with Defendants. It is well-settled that breach of contract and unfair trade practices claims under Pennsylvania law are preempted by ERISA. See Maldonado v. Unum Life Ins. Co. of America, Civ. A. No. 06-2841, 2006 WL 3164799, at *2 (E.D.Pa. Oct. 31, 2006) (“Claims that relate to employee benefit plans brought pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., are expressly preempted by ERISA.”); Jobe v. Prudential Ins. Co. of America, 2010 WL 3811671, at *8 (W-D.Pa. Sept. 23, 2010) (same); Linden, 2004 U.S. Dist. LEXIS 8598, at *7, 2004 WL 1047719, at *3 (citing Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 43, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (breach of contract claims are preempted by ERISA); LaFata v. Raytheon Co., 223 F.Supp.2d 668, 676 (E.D.Pa.2002)) (same). Likewise, in Barber v. Unum Life Ins. Co., the United States Court of Appeals for the Third Circuit specifically held that state law bad faith claims under 42 Pa.C.S. § 8371 are preempted by ERISA. Barber v. Unum Life Ins. Co., 383 F.3d 134, 140-44 (3d Cir.2004). Despite the decision in Barber, upon which Defendants rely, Plaintiff argues that her bad faith claim is not preempted under two district" }, { "docid": "14251182", "title": "", "text": "benefits offered to those not offered “substantially equivalent employment”); Pane v. RCA Corp., 667 F.Supp. 168, 170-71 (D.N.J.1987), aff'd 868 F.2d 631 (3rd Cir.1989) (administrative scheme found where employee was entitled to benefits only in certain instances such as termination without cause)). As with the case at bar, the common element in the cases compared in Kulinski is that determining eligibility requires reviewing the individual circumstances of each employee against specific benefit criteria. The Court therefore finds that the change of control plan adopted by Saks required an ongoing administrative scheme, and is therefore a benefit plan covered under ERISA. C. Preemption Having found that the change of control Plan adopted by Saks is an ERISA benefits plan, the Court must determine if Plaintiffs’ state law claims are preempted by the Act. Under ERISA’s preemption provision, any claim for benefits under an ERISA employee benefit plan must come under the Act’s civil enforcement scheme, 29 U.S.C. § 1132. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 52-57, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Metropolitan Life v. Taylor, 481 U.S. 58, 62-63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The Court must, therefore, review whether Plaintiffs’ claims relate to the Plan at issue here. A law “relates to” an employee benefit plan under ERISA if it (1) expressly refers to, or (2) has a connection to such a plan. Eckelkamp v. Beste, 315 F.3d 863, 870 (8th Cir.2002) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Here, Plaintiffs assert state law causes of action for breach of contract, promissory estoppel, fraudulent misrepresentation, and a claim under the Iowa Wage Payment Collection Law, Iowa Code Chapter 91A. The claims arise from Plaintiffs’ claims for benefits pursuant to the October 27, 2000 letter, after the consolidation of Saks’s Younker’s division. As found above, the letter was distributed in connection with the change of control Plan adopted by Saks. Plaintiffs’ claims, therefore, are essentially claims for benefits under the plan or challenges to Saks’s administrative and fiduciary responsibilities with regards to" }, { "docid": "22097573", "title": "", "text": "covered by ERISA. 29 U.S.C. § 1144(a) (with exceptions not relevant here). The wording provides no basis for holding that, of the various administration and enforcement provisions, the preemption provision alone is inapplicable to top hat plans. The preemption “provisions of ERISA are deliberately expansive, and designed to ‘establish pension plan regulation as exclusively a federal concern.’ ” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981)). In Alessi, the Supreme Court observed that “[t]he only relevant state laws, or portions thereof, that survive this pre-emption provision are those relating to plans that are themselves exempted from ERISA’s scope.” Alessi 451 U.S. at 523 n. 20, 101 S.Ct. 1895. Preemption thus applies to every plan covered by ERISA, which necessarily includes top hat plans. The purpose of ERISA preemption is to ensure that all covered benefit plans will be governed by unified federal law, thus simplifying life for employers administering plans in several states, because “[a] patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). Employers might well cut back on benefit plans if faced with the expense and difficulty of satisfying varied and conflicting requirements of state laws. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 105 n. 25, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). We see no reason to create an exception for top hat plans, and subject them to the impracticalities and counter-incentives of state-level interference in their administration. Other circuits that have reached this issue agree, dismissing state law claims that involve top hat plans. See Cogan v. Phoenix Life Ins. Co., 310 F.3d 238, 242-43 (1st Cir.2002) (affirming dismissal based on preemption of state law breach of contract claim for top hat benefits); Reliable Home Health Care, Inc. v. Union Cent. Ins. Co., 295 F.3d 505, 516 (5th Cir.2002) (affirming dismissal based on preemption of state law fraud" }, { "docid": "13372890", "title": "", "text": "481 U.S. 41, 47, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Fortune v. Medical Assocs. of Woodhull, P.C., 803 F.Supp. 636, 640 (E.D.N.Y.1992). ERISA supersedes “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C.A. § 1144(a) (West 1999). The phrase “relate to” in section 1144(a) is interpreted in its broadest sense, reaching any state laws that have any connection or reference to a particular employee benefit plan. See Pilot Life Ins. Co., 481 U.S. at 47-48, 107 S.Ct. 1549. “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). ERISA clearly preempts state law claims for benefits under an employer-sponsored disability benefit plan, such as the program in which Plaintiff participated. See James v. Fleet/Norstar Financial Group, Inc., 992 F.2d 463, 465 (2d Cir.1993) (“If an employer’s program is an employee welfare plan, ERISA preempts state laws that ‘provide an alternative course of action to employees to collect benefits protected by ERISA,’ ” quoting Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 146 (2d Cir.), cert. denied 493 U.S. 811, 110 S.Ct. 57, 107 L.Ed.2d 25 (1989)). The contract cause of action plead in the amended complaint is thus preempted by ERISA and summary judgment in Defendant’s favor on that claim is therefore warranted. Plaintiff’s Request for Leave to Amend Plaintiff contends that, if her non-ERISA claim is preempted, she should be given an opportunity to amend further her complaint to assert an ERISA claim. Plaintiff proffers no specifies as to the nature of that claim, but the Court assumes in light of the factual allegations set forth in the complaint and in her papers in opposition to the instant motion that it would be an action under 29 U.S.C. section 1132(a)(1)(B), for benefits under the plan or to clarify rights to benefits under the plan, since those are the issues raised in the" }, { "docid": "5714511", "title": "", "text": "file extended briefs. Defendant states that the highly technical subject matter, i.e. medical treatment and explanations of the processes involved, necessitate the submission of briefs in excess of twenty pages. This Court accepts the explanation and will therefore, allow both motions. B. Defendant’s Motion to Strike the Plaintiff’s Demand for a Jury Trial This is an action brought pursuant to 29 U.S.C. § 1132 to determine whether Fallon properly denied Mrs. Turner’s claim for benefit coverage under an ERISA plan. To determine whether a jury trial is available under a particular statute, courts must first look at the statute itself and then to its legislative history. Charlton Memorial Hosp. v. The Foxboro Co., 818 F.Supp. 456, 459 (D.Mass.1993). ERISA does not explicitly state or provide that a person with the standing to assert an ERISA claim has a right to a jury trial with respect to that claim. Fuller v. Connecticut Life Ins. Co., 733 F.Supp. 462, 463 (D.Mass.1990). Although the issue has not yet been addressed by the First Circuit Court of Appeals, this United States District Court has consistently held that there is no right to a jury trial under ERISA. Vartanian v. Monsanto Co., 880 F.Supp. 63 (D.Mass.1995); Jorstad v. Connecticut General Life Ins. Co., 844 F.Supp. 46 (D.Mass.1994); Charlton Memorial Hosp., 818 F.Supp. at 460; Fuller, 733 F.Supp. at 465. A majority of Circuit Courts has likewise held that no right to a trial by jury exists with respect to a claim for benefits based upon ERISA. Borst v. Chevron Corp., 36 F.3d 1308 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1699, 131 L.Ed.2d 561 (1995); Houghton v. SIPCO, Inc., 38 F.3d 953 (8th Cir.1994); Blake v. Unionmutual Stock Life Ins. Co. of America, 906 F.2d 1525 (11th Cir.1990); Turner v. CF & I Steel Corp., 770 F.2d 43, 47 (3d Cir.1985), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Wardle v. Central States, S.E. and S.W. Areas Pension Fund, 627 F.2d 820 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981). While sheer weight" }, { "docid": "10332842", "title": "", "text": "to Garrity v. Rural Mutual Insurance Company, 77 Wis.2d 537, 253 N.W.2d 512 (1977)). Thus, if the Wisconsin common law (“the Rimes doctrine”) is applicable to the dispute between Northern and Jennifer, the Plan is barred from recovering any money from Jennifer until she has been made whole. Northern does not dispute that the Rimes doctrine prohibits it from recovering from Jennifer until she is made whole, but instead, argues that this state law is automatically preempted by 29 U.S.C. § 1144(b)(2)(B), otherwise known as the “deemer clause,” (see Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987)) because the Plan is self-insured. Jennifer has not objected to Northern’s assertion that ERISA governs the Plan nor that the Plan is self-insured. Upon review of Title 29 U.S.C. §§ 1002(1), 1003, and 1132, and the terms of the Plan, this court finds (1) that Jennifer’s claim for clarification of her rights under the Plan is governed by ERISA and (2) that the Plan is self-insured. There are three provisions in ERISA which determine when state law is preempted: (1) the general “preemption clause” in 29 U.S.C. § 1144(a); (2) the “savings clause” in 29 U.S.C. § 1144(b)(2)(A); and (3) the “deemer clause” in 29 U.S.C. § 1144(b)(2)(B). The United States Supreme Court has repeatedly held that the first two provisions operate to preempt a state law that in any way “relates to” employee benefit plans unless the state law “regulates insurance.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 62, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 733, 105 S.Ct. 2380, 2385, 85 L.Ed.2d 728 (1984); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). In addition, even if the state law “regulates insurance,” it is still preempted if it falls within the “deemer clause.” Pilot, 481 U.S. at 45, 107 S.Ct. at 1552." }, { "docid": "16216528", "title": "", "text": "Hospital System v. North-brook Life Ins. Co., 904 F.2d 236 (5th Cir.1990). . 29 U.S.C. § 1144(a). . Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 1557-58, 95 L.Ed.2d 39 (1987). . Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). . See, e.g., Ramirez v. Inter-Continental Hotels, 890 F.2d 760 (5th Cir.1989) (ERISA preempts statutes such as Tex.Ins.Code art. 21.21 which provide an action for improper handling of insurance claims); Boren v. N.L. Industries, Inc., 889 F.2d 1463 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3283, 111 L.Ed.2d 792 (1990) (ERISA preempts Texas DTPA); Hermann Hospital v. MEBA Medical & Ben. Plan, 845 F.2d 1286 (5th Cir.1988) (ERISA preempts common law claims for breach of fiduciary duty, negligence, equitable estoppel, breach of contract and fraud). . 29 U.S.C. § 1144(b)(2)(A). See e.g., Pilot Life, 481 U.S. 41, 50, 107 S.Ct. 1549, 1554, 95 L.Ed.2d 39 (state law breach of contract and duty of good faith and fair dealing not saved); Ramirez, 890 F.2d at 763-64 (Tex.Ins.Code. art. 21.21 not saved); McManus v. Travelers Health Network, 742 F.Supp. 377 (W.D.Tex.1990) (Texas DTPA not saved); Cathey v. Metropolitan Life Ins. Co., 805 S.W.2d 387 (Tex.), cert. denied, - U.S. -, 111 S.Ct. 2855, 115 L.Ed.2d 1023 (1991) (Texas DTPA not saved). . In relevant part 29 U.S.C. § 1113 provides that: (a) No action may be commenced under this title with respect to a fiduciary's breach of any responsibility, duty, or obligation ... after the earlier of- (1) six years after (A) the date of the last action which constituted a part of the breach or violation ... or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced no later than six years after the date of discovery of such breach or violation. . 29" }, { "docid": "13580202", "title": "", "text": "The Roesserts maintain that their complaint is based on the quality of medical care provided by defendants, is unrelated to their right to benefits under the plan and that the action should therefore be removed to state court. The question before this court is whether the state law causes of action pled in the complaint are based purely on medical decisions made by defendants which do not invoke federal jurisdiction or whether defendants’ actions, as alleged, relate to benefit determinations and should be recharacterized as federal claims and subject to ERISA preemption. I. Motion to Remand A. Analytical Framework The Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq., provides a unique federal framework for the regulation of employee pension and benefit plans. In order to ensure that pension and benefit plans would be an exclusively federal concern, Congress included a “deliberately expansive” preemption provision as part of ERISA. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 1551-1552, 95 L.Ed.2d 39 (1987); see also General American Life Ins. Co. v. Castonguay, 984 F.2d 1518, 1521 (9th Cir.1993) (noting that ERISA’s preemption is one of the broadest ever enacted by Congress). Section 514(a) of ERISA broadly preempts all state laws which “relate to” any employee benefit plan. 29 U.S.C. § 1144(a). A law “relates to” an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). The Supreme Court has given expansive effect to section 514(a), holding that a state law need not explicitly refer to employee benefit plans in order to be preempted; it also need not be specifically designed to affect benefit plans. Pilot Life, 481 U.S. at 47-48, 107 S.Ct. at 1552-1553. State law claims which arise either directly or indirectly from the administration of the plan are preempted. Gibson v. Prudential Ins. Co. of America, 915 F.2d 414, 416 (9th Cir.1990); see also Pilot Life, 481 U.S. at" }, { "docid": "1644908", "title": "", "text": "have known LeBeau would reasonably and detrimentally rely upon these misrepresentations, and that LeBeau did in fact rely upon them and suffer damages as a direct and proximate result of such reliance. The parties agree the health plan at issue is an ERISA-regulated plan. When Congress enacted ERISA, it created a federal statutory scheme to govern employee benefit plans. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). However, Congress intended courts to fill in the statute’s gaps by developing a federal common law of rights and obligations under ERISA-regu-lated plans. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court and the Fourth Circuit have authorized federal courts to develop this federal common law when ERISA fails to address an issue and the state law governing that issue has been preempted. Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 560 (4th Cir.1994). Although ERISA broadly preempts state laws, courts may look to state common law in fashioning federal common law for ERISA claims. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992). “Courts must be conscientious to fashion federal common law only when it is ‘necessary to effectuate the purposes of ERISA.’ ” Id. (quoting Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 992 (4th Cir.1990)). One of the purposes of ERISA is “to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Although A.S.G. concedes that federal common law may be applied in certain circumstances when considering ERISA claims, A.S.G. asserts that “the subject of equitable estoppel is not one of those circumstances.” Reply to June C. LeBeau’s Resp. to Mot. of A.S.G., Inc. to Dismiss Am. Compl., at 1-2. A.S.G. is incorrect in its categorical assertion. Multiple federal courts of appeals have determined that, in some circumstances, equitable estoppel principles are applicable in fashioning federal common law for ERISA claims. See" }, { "docid": "19768592", "title": "", "text": "the state law relates to a plan.” In Home Health, Inc. v. Prudential Ins. Co. of Am., 101 F.3d 600, 604 (8th Cir.1996); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (“Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.”). “In determining whether a state action ‘relates to’ an employee benefit plan covered by ERISA, [the Eighth Circuit Court of Appeals] employ[s] a two-part test.” Parkman v. Prudential Ins. Co. of Am., 439 F.3d 767, 771 (8th Cir.2006) (citing Wilson v. Zoellner, 114 F.3d 713, 715 (8th Cir.1997)). “A law relates to a covered employee benefit plan for purposes of ERISA if it has (1) ‘a connection with’ or (2) ‘reference to such a plan.’ ” Id. (quoting Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 324, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)). Second, there is “conflict” preemption. Section 502(a) of ERISA provides a comprehensive remedial scheme to enforce ERISA’s provisions. 29 U.S.C. § 1132(a). This preemption exists when a state law “conflicts with a specific portion of the complex ERISA statute.” Painter v. Golden Rule Ins. Co., 121 F.3d 436, 439 (8th Cir.1997). The Supreme Court has determined that ERISA’s remedies preempt “state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 43, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). A state claim that would fall within the scope of ERISA’s remedial scheme is preempted as conflicting with the exclusivity of the ERISA’s remedial scheme even when the state claim is not preempted by Section 514(a). See Aetna Health Inc. v. Davila, 542 U.S. 200, 214 n. 4, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“But a state cause of action that provides an alternative remedy to those provided by the ERISA civil enforcement mechanism conflicts with Congress’ clear intent to make" }, { "docid": "22212250", "title": "", "text": "29 U.S.C. § 1144(a). Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The Beck-man plan is an ERISA employee benefit plan. The phrase “relate to” is given broad meaning such that a state law cause of action is preempted if “it has connection with or reference to that plan.” Metropolitan Life Ins. Co. v. Mass., 471 U.S. 724, 730, 732-33, 105 S.Ct. 2380, 2385-86, 85 L.Ed.2d 728 (1985); Shaw v. Delta Airlines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Such claims are preempted if they “relate to” an ERISA plan whether or not they were so designed or intended. Daniel v. Eaton Corp., 839 F.2d 263 (6th Cir.), cert. denied, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 52 (1988). Nor is it relevant to an analysis of the scope of federal preemption that appellants may be left without remedy. Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The United States Supreme Court has held that Congress’ intent in enacting ERISA was to completely preempt the area of employee benefit plans and to make regulation of benefit plans solely a federal concern. Pilot Life, 481 U.S. at 41, 107 S.Ct. at 1549. See also Firestone Tire & Rubber Co. v. Neusser, 810 F.2d 550 (6th Cir.1987). The Court consistently emphasizes the broad scope of preemption under ERISA. See, e.g., Pilot Life, 481 U.S. at 41, 107 S.Ct. at 1549; Metropolitan Life v. Mass., 471 U.S. at 730, 105 S.Ct. at 2384; Shaw, 463 U.S. at 85, 103 S.Ct. at 2890. Thus, only those state laws and state law claims whose effect on employee benefit plans is merely tenuous, remote or peripheral are not preempted. This circuit, too, has repeatedly recognized that virtually all state law claims relating to an employee benefit plan are preempted by ERISA. See, e.g., Ruble v. UNUM Life Ins. Co., 913 F.2d 295 (6th Cir.1990); Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689 (6th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1924, 109 L.Ed.2d 288" }, { "docid": "22878970", "title": "", "text": "the increase in the rates, as well as the 1994 surcharge. Principal Mutual demanded payments and unilaterally increased the 1995 rates. Finally, Principal Mutual terminated Woodworker’s coverage effective midnight, August 31,1995. II. A. ERISA Preemption The primary legal question in this case is whether, and to what extent, ERISA preempts Woodworker’s claims against Principal Mutual. The trial court originally dismissed as preempted only those claims arising “out of Principal’s alleged failure to provide coverage in September 1995,” Aplt. App. at 153, but modified its ruling at trial by holding preempted all claims arising after March 1, 1994, the date the insurance plan commenced. We review the trial court’s ruling on ERISA preemption de novo as it involves a question of law. See Airparts Co. v. Custom Benefit Services of Austin, 28 F.3d 1062, 1064 (10th Cir.1994). The plain language of ERISA provides that it shall preempt state laws that “relate to any employment benefit plan,” subject to enumerated exceptions. See 29 U.S.C. § 1144(a). The Supreme Court has frequently acknowledged the expansive scope of ERISA preemption, see, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98-99, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), yet the Court has also noted that this observation provides little aid in actually determining whether ERISA supersedes state law, see, e.g., New York State Conference of Blue Cross & Blue Shield v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); California Div. of Labor Stand. v. Dillingham, 519 U.S. 316, 335-36, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (Scalia, J., concurring). As the Court noted in Travelers: [0]ne might be excused for wondering, at first blush, whether the words of limitation ... do much limiting. If “relate to” were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for “[r]eally, universally, relations stop nowhere,”" }, { "docid": "2641615", "title": "", "text": "the registry of the district court and was dismissed, leaving only Manning, on behalf of the estate, and Hayes as parties to the suit. In November 1998, both Manning and Hayes moved for summary judgment. Manning argued that this Court’s opinion in Brandon v. Travelers Ins. Co., 18 F.3d 1321 (5th Cir.1994), which dealt with similar facts, adopted Texas Family Code § 9.301 for purposes of the federal common law applicable in similar ERISA actions. Manning therefore argued that both Brandon and § 9.301 dictated a result in favor of the estate. Hayes argued that Brandon was both wrongly decided at the time, because inconsistent with ERISA provisions governing competing claims for life insurance proceeds, and subsequently undermined by the Supreme Court’s decision in Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997), which applied an expansive preemption analysis. Alternatively, Hayes argued that Brandon did not purport to adopt the rule codified in Texas Family Code § 9.301 for similar ERISA actions, and that the facts at issue in Brandon were distinguishable, such that Brandon did not dictate a result in favor of the estate in this case. The district court considered these motions, eventually concluding that Hayes, as the named ERISA beneficiary, was entitled to the proceeds of the life insurance policy. Manning timely appealed. We review the district court’s grant of summary judgment de novo. Clift v. Clift, 210 F.3d 268, at 269-70 (5th Cir.2000). II. Congress passed ERISA in 1974 to. establish a comprehensive federal scheme for the protection of the participants and beneficiaries of employee benefit plans. See 29 U.S.C. § 1001; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 1551, 95 L.Ed.2d 39 (1987); Shaw v. Delta Air Lines Inc., 463 U.S. 85, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). ERISA broadly preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). A'law “relates to” an employee benefit plan when the law has “a connection with or reference to such a" }, { "docid": "22820705", "title": "", "text": "887 (1992). Thus, although no implied right of action exists under ERISA in favor of a participant against a non-fiduciary who knowingly participates in an ERISA-fiduciary’s breach of duty, the question remains whether a federal common law right of action should be recognized. This requires a consideration of whether there is a need for interstitial lawmaking and, if so, whether recognizing such a right of action would be consistent with ERISA’s scheme and further its purposes. See Jamail, Inc. v. Carpenters Dist. Council, 954 F.2d 299, 303-04 (5th Cir.1992); U.S. Steel Min. Co. v. District 17, United Mine Workers of America, 897 F.2d 149, 153 (4th Cir.1990). Section 514(a) of ERISA broadly preempts state law causes of action that “relate to” an ERISA-regulated plan. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). One factor pointing in favor of preemption is the “expectation[ ] that a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). And, though Congress may preempt state law remedies without providing a corresponding remedy under federal law, see Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987), some courts have concluded that because preemption, in the final analysis, turns on congressional purpose, if suits against non-fiduciaries may not lie under ERISA, Congress could not have aimed to preempt such actions. See Capital Mercury Shirt Corp. v. Employers Reinsurance Corp., 749 F.Supp. 926, 933-34 (W.D.Ark.1990); Munoz v. Prudential Ins. Co. of America, 633 F.Supp. 564, 571 (D.Colo.1986); see also Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990); Coleman v. General Elec. Co., 643 F.Supp. 1229, 1233-34 (E.D.Tenn.1986), aff'd mem., 822 F.2d 59 (6th" }, { "docid": "12791744", "title": "", "text": "U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987). An exception to the well pleaded complaint rule has been carved out for those areas in which Congress has “so completely pre-empt[ed] a particular area that any civil complaint raising this select group of claims is necessarily federal in character.” Id. at 63-64, 107 S.Ct. at 1546. Such a niche has been carved out by Congress for claims for benefits brought by participants and beneficiaries of ERISA-regulated employee benefit plans. See 29 U.S.C. § 1144(a); Metropolitan Life Ins. Co., 481 U.S. at 66, 107 S.Ct. at 1547; see also Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 55-56, 107 S.Ct. 1549, 1557-1558, 95 L.Ed.2d 39 (1987) (Congressional intention is clear “that all suits brought by beneficiaries asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by [ERISA’s civil enforcement mechanisms].”). ERISA regulates employee benefit plans that “ ‘through the purchase of insurance or otherwise,’ provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death.” Pilot Life Ins. Co., 481 U.S. at 44, 107 S.Ct. at 1551 (quoting 29 U.S.C. § 1002(1)). The Pacificare HMO plan provided to Rodriguez by his employer clearly, meets this test. State law claims are “related to” employee benefit plans, and hence are preempted, if the state law has a “connection with or reference to such a plan.” Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). Rodriguez’s state law claims, at bottom, result from dissatisfaction over Pacificare’s handling of his medical claims. Consequently, his state law causes of action are sufficiently related to the employee benefit plan, in that they clearly have a “connection or reference to such a plan,” to be pre-empted by ERISA. Id.; see Pilot Life Ins. Co., 481 U.S. at 55-57, 107 S.Ct. at 1557-1558; Metropolitan Life Ins., 481 U.S. at 62-63, 107 S.Ct. at 1545-1546; Lee v. E.I. Du Pont de Nemours & Co., 894 F.2d 755, 758 (5th Cir.1990); Boren v. N.L. Indus., Inc., 889 F.2d 1463," } ]

[ { "docid": "12375482", "title": "", "text": "responsibility to take reasonable precautions, the complaint has survived dismissal. See Matje v. Leis, 571 F.Supp. 918 (S.D.Ohio 1983) (several different prison employees failed to discover a lethal dose of drugs hidden in the inmate’s person despite repeated warnings that she was suicidal and precise reports of the location of the drugs). Similarly, when the factual scenario presented by plaintiff suggests that defendants should have known that the prisoner was a suicide risk, and failed to take necessary and available precautions to protect the prisoner from self-inflicted wounds, the complaint will survive dismissal. This was the situation presented in Colburn. B. Plaintiffs in this case do not allege actual knowledge by the individual police officers of Freedman’s suicidal tendencies. Instead, the complaint pleads that Kroboth, the state probation officer, who knew of Freedman’s prior suicide attempt, failed to mention it to Balliet. This case is therefore unlike Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182 (5th Cir.1986), where the prisoner who committed suicide exhibited hysterical behavior on his arrest and serious aberrant behavior en route to the jail, the arresting officer was told by the prisoner’s father that the prisoner had suffered a mental breakdown and was shown that he wore two medical alert bracelets, and there were jail records showing that the prisoner had attempted suicide during an earlier confinement. Id. at 1184. Plaintiffs argue, however, that Freedman’s large prominent scars on his wrists, inside of his elbows and neck were shown by Freedman to the individual defendants and were, in any event, readily apparent when Freedman was searched. Because we must view the complaint in the light most favorable to plaintiffs we will assume that a reasonably competent prison official should have known and identified these marks as “suicide hesitation cuts,” as described by the forensic pathologist. Even if so, the failure to recognize them as such, without more, amounts only to negligence and therefore fails to support a claim under section 1983. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Plaintiffs seek to analogize this case to Colburn." } ]

[ { "docid": "22195503", "title": "", "text": "municipal officials.”’ Id. at 671 (citation omitted). In Colburn, we further suggested that in order to establish a section 1983 claim against a municipality, arising from a jailhouse suicide and premised on the failure to provide employees with adequate training, a plaintiff must present evidence of a policymaker’s knowledge of a constitutionally violative incident or pattern of incidents arising from inadequate training. Id. at 673. See also Freedman v. City of Allentown, 853 F.2d 1111, 1115-16 (3d Cir.1988) (discussing Colburn’s requirements for stating a section 1983 claim based on a jailhouse suicide and alleging violations of constitutional rights arising from a municipal policy or custom and a failure to train). . I note in this regard that the Supreme Court, in Wilson v. Seiter,-U.S.-, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), recently held that, in order for a prisoner to establish a section 1983 claim that conditions of confinement violate the eighth amendment’s prohibition against cruel and unusual punishment, the prisoner must show that prison officials possessed \"a culpable state of mind” — to wit, deliberate indifference. Id. As I discuss infra, at 1067, the deliberate indifference standard formulated above for determining whether the City, by means of a policy or custom, breached a constitutional duty to Simmons is derived from this court’s decisions holding that pretrial detainees are entitled to at least the same level of medical care as that to which convicted prisoners are entitled under the eighth amendment. In determining that the presentation of scienter-like evidence with respect to specific City officials constituted an essential element of plaintiffs section 1983 action against the City, I have relied principally on the Supreme Court's trio of cases setting forth the prerequisites for establishing a municipal policy or custom. I think, however, that Wilson ’s holding in the eighth amendment context further supports my conclusion that, in order to establish that the City was deliberately indifferent to the needs of intoxicated and potentially suicidal detainees, plaintiff must have adduced scienter-like evidence of the deliberate indifference of specific policymakers. . I do not intimate that, if the district court had determined" }, { "docid": "22391493", "title": "", "text": "not find the handgun with which Stierheim later shot and killed herself. Miller also had to prevent Stierheim from swallowing three valium pills Stierheim had removed from her purse. The district court granted Miller’s motion to dismiss, and we reversed, concluding that these facts, if proved, could establish that Miller knew or should have known of Stierheim’s vulnerability to suicide and that she acted with deliberate indifference thereto. In Freedman, plaintiff Albert Freedman, administrator of the estate of Jerry Freedman, filed a section 1983 action against probation officer Frank Kroboth, Allentown police officers George LaFaver and Robert Hendricks, and Allentown police detective Carl Balliet. Jerry Freedman had committed suicide after having been questioned and arrested by Detective Balliet. The complaint alleged that the defendants should have known of Freedman’s suicidal propensity and that they acted with reckless indifference by not taking steps to prevent Freedman’s suicide. This contention was based on the allegation that during his questioning by Detective Balliet, Freedman, when asked if he had any scars, had rolled up his sleeve and revealed “large prominent scars” on his wrists, the inside of his elbows, and his neck, which the forensic pathologist later described as “suicide hesitation cuts.” Plaintiff also alleged that Probation Officer Kroboth knew of Freedman’s suicidal tendencies but did not inform Detective Balliet of them during a telephone conversation. The district court granted the defendants’ motion to dismiss, and we affirmed. We concluded that the allegations regarding the officers’ knowledge of Freedman’s suicidal propensity were factually unsupported and that their failure to recognize Freedman’s scars as attempted suicide marks and to take appropriate action at most constituted negligence and could not support a finding of deliberate indifference. We concluded that Kroboth’s failure to warn Balliet of Freedman’s suicidal tendencies was also, at most, negligent. We distinguished Colburn by noting that the cumulative evidence of the decedent’s suicidal propensity was much greater in that case. See 853 F.2d at 1116. We noted that we must engage in line-drawing, and concluded that the facts in Colburn fell on one side of the line and the facts in Freedman" }, { "docid": "22391494", "title": "", "text": "“large prominent scars” on his wrists, the inside of his elbows, and his neck, which the forensic pathologist later described as “suicide hesitation cuts.” Plaintiff also alleged that Probation Officer Kroboth knew of Freedman’s suicidal tendencies but did not inform Detective Balliet of them during a telephone conversation. The district court granted the defendants’ motion to dismiss, and we affirmed. We concluded that the allegations regarding the officers’ knowledge of Freedman’s suicidal propensity were factually unsupported and that their failure to recognize Freedman’s scars as attempted suicide marks and to take appropriate action at most constituted negligence and could not support a finding of deliberate indifference. We concluded that Kroboth’s failure to warn Balliet of Freedman’s suicidal tendencies was also, at most, negligent. We distinguished Colburn by noting that the cumulative evidence of the decedent’s suicidal propensity was much greater in that case. See 853 F.2d at 1116. We noted that we must engage in line-drawing, and concluded that the facts in Colburn fell on one side of the line and the facts in Freedman on the other. See id. at 1117-18. IV. A. Turning to the application of the foregoing principles to the present case, I begin by considering the district court’s grant of summary judgment to Officer Ferriola and Sergeant Chesko. I note initially that there is no direct evidence that either Ferri-ola or Chesko actually knew of Ronald Williams’s suicidal propensity. Sergeant Yarnall testified at his deposition that he would not be surprised if neither Ferriola nor Chesko knew about it. Both Ferriola and Chesko testified that they did not know of it. Although both Ferriola and Chesko had served in Corporal Boggs’s platoon and although Boggs had first-hand knowledge of Williams’s suicidal tendencies, see supra at 462, there is no evidence that either Ferriola or Chesko was present at the time of the attempted suicides. Nor is there direct evidence that they were ever told about these incidents. On the other hand, Yarnall testified in his deposition that Williams’s suicidal tendencies were widely known in the West Chester police department. Moreover, the department, at all times" }, { "docid": "22993358", "title": "", "text": "suicide. Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir.1988), illustrates the point. Jerry Freedman committed suicide while being detained in the Allentown Police Station. There was no allegation of “actual knowledge by the individual police officers of Freedman’s suicidal tendencies.” Id. at 1115. Rather, the plaintiffs relied on Colburn I and alleged that the defendants “should have known” that Freedman had a particular vulnerability to suicide. The plaintiffs based their theory on the “large prominent scars” that Freedman showed the defendants “on his wrists, inside of his elbows and neck.” Id. at 1116. The court was willing to assume “that a reasonably competent prison official should have known and identified these marks as ‘suicide hesitation cuts,’ as described by the forensic pathologist.” Id. Nevertheless, the court dismissed the plaintiffs’ claim because the allegations, if true, amounted only to negligence. “In the absence of any allegations suggesting more than mere negligence by the individual police officers in failing to recognize Freedman’s suicidal tendencies from the scars that were readily apparent, we conclude that plaintiffs have not alleged a viable section 1983 claim against those officers.” Id. Thus, “should have known,” as used in Colburn I, is a phrase of art with a meaning distinct from its usual meaning in the context of the law of torts. It does not refer to a failure to note a risk that would be perceived with the use of ordinary prudence. It connotes something more than a negligent failure to appreciate the risk of suicide presented by the particular detainee, though something less than subjective appreciation of that risk. The “strong likelihood” of suicide must be “so obvious that a lay person would easily recognize the necessity for” preventative action, MCCI, 834 F.2d at 347; the risk of self-inflicted injury must be not only great, but also sufficiently apparent that a lay custodian’s failure to appreciate it evidences an absence of any concern for the welfare of his or her charges. IV. A. Diane Miller’s Individual Liability Colburn maintains that Diane Miller knew or should have known of Stierheim’s particular vulnerability to suicide" }, { "docid": "22993351", "title": "", "text": "process at the Upper Darby jail includes no formal physical or mental health screening. III. The plaintiffs claim presents difficult issues because no state actor directly inflicted harm on Stierheim. Nevertheless, it is established in this Circuit that the suicide of a pretrial detainee can support a recovery in a 42 U.S.C. § 1983 action. See Colburn I, supra; see also Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989); Freedman v. Allentown, 853 F.2d 1111 (3d Cir.1988). Colburn I established the standard of liability to be applied in this circuit in prison suicide cases. There, we held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” 838 F.2d at 669. Thus, a plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. To better understand Colburn 7’s requirements, it is helpful to examine the lines of cases that provided the theoretical underpinnings for that decision. One principal source of support was Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Estelle involved Eighth Amendment claims alleging inadequate medical treatment. The Court held that prison officials violate the Eighth Amendment’s proscription of cruel and unusual punishment when they exhibit “deliberate indifference to serious medical needs of prisoners.” Id. at 104, 97 S.Ct. at 291. The standard enunciated in Estelle “requires [both that there be] deliberate indifference on the part of the prison officials and [that] the prisoner’s medical needs ... be serious.” Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987) (“MCCI”) (quoting West v. Keve, 571 F.2d 158, 161 (3d Cir.1978)), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988). As this Court recognized in MCCI, the concept of a serious medical" }, { "docid": "12375495", "title": "", "text": "in response to which Freedman rolled up his sleeves and “revealed large prominent scars on his wrists and inside of his elbows and neck.” See Appellants’ Brief, Appendix 7a. These scars were designated postmortem by a forensic pathologist as “suicide hesitation cuts.” The complaint also alleges that these same scars were “readily apparent” on the decedent’s body at the time Freedman was searched by unidentified police officers after his arrest. It is on the basis of the factual allegations stated above that plaintiffs conclude that the actions of defendant police officers “constituted willful misconduct and were intentional and deliberate and in reckless disregard of plaintiffs’ decedent’s rights, not merely negligence.” Id. at 10a. There can be no question that plaintiffs’ conclusory allegation that defendants’ conduct under the circumstances was, at minimum, “reckless” is in conformity with the legal standard recognized in Colburn for imposing § 1983 liability on officials acting under color of state law. See Colburn, 838 F.2d at 669. However, the central issue confronting this court is whether the allegations in support of this conclusory statement can, as a matter of law, rise to the level of something more than mere negligence. Stated hypothetically, the relevant inquiry is whether a police officer’s failure to recognize “prominent” scars on a detainee’s elbows, wrists and neck can ever amount to anything more than simple negligence? The majority’s answer is an unequivocal “no”; however, it offers no basis for its conclusion other than the unillumi-nating statement that “the failure to recognize them [the scars] as such [“suicide hesitation cuts”], without more, amounts only to negligence and therefore fails to support a claim' under Section 1983 [citation omitted].” I remain unconvinced that Detective Bal-liet’s inability to recognize the tell-tale signs of a high suicide risk individual can never amount to “recklessness.\" I fail to see how the majority can be so resolute in its position without knowing the extent of the police officer’s background and training in detecting suicide risks and in suicide prevention, in addition to his prior experience with prisoners who have taken their own lives or attempted unsuccessfully to" }, { "docid": "9770757", "title": "", "text": "do so, even in the face of the most exhaustive precautions. It is, however, equally true that a suicidal prisoner is in need of psychiatric care, and prison custodians may not be deliberately indifferent to this need, pursuant to the Supreme Court’s standard in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) (a convicted prisoner charging that a prison official has denied him adequate medical treatment must prove that the official was “deliberately] indifferen[t] to [his] serious medical needs”). At least three circuits, including our own Third Circuit, have specifically held that custodial officials may be liable in damages for the suicide of a pretrial detainee if they acted with “deliberate indifference” to the individual’s psychological needs. Col- burn I, 838 F.2d at 668 (“[A] detainee is entitled under the Due Process Clause of the Fourteenth Amendment to, at a minimum, no less protection for personal security than that afforded convicted prisoners under the Fourteenth Amendment and no less a level of medical care than that required for convicted prisoners by the Eighth Amendment.”); Freedman v. City of Allentown, 853 F.2d at 1115; Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.1986); Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir.1985). The Third Circuit, in Col-burn I, elaborated on the standard of liability to be applied in prison suicide cases. There, the court held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” Colburn I, 838 F.2d at 669. This standard was later reduced to a three factor test in Colburn II. In that case, the Third Circuit ruled that a plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn II," }, { "docid": "22391529", "title": "", "text": "reveals knowledgeable conduct, intentional conduct, deliberate indifference, or reckless indifference. Of particular interest is the fact that no evidence was ever produced by Ronald Williams’ estate to contradict or dispute the testimony of Ferriola, Ches-ko, or McBride insofar as that testimony pertained to the “deliberate indifference” standard or to the procedure for handling prisoners and removing their personal belongings. II. Third Circuit Precedent I add just a few words about this court’s opinions in this area. Both Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir.1988) and Freedman v. City of Allentown, Pa., 853 F.2d 1111 (3d Cir.1988) involved jailhouse suicides, as does the instant case. Judge Becker has summarized the facts in both cases (Becker J., Op. p. 464-65). I call attention to only one or two matters emphasized in Freedman because of their bearing in the instant case. Significantly, Freedman, as well as its predecessor Colburn, both came to us not as judgments rendered in summary judgment proceedings, but rather from judgments which dismissed their respective complaints under F.R.C.P. 12(b)(6). In Col-burn, we reversed the district court’s order of dismissal and held that, taking all the well-pleaded allegations as true and construing the complaint in the light most favorable to the plaintiff, the complaint stated a sufficient § 1983 cause of action. Because there had been no discovery establishing the facts alleged in the Colburn complaint, we reversed for further development of the record. In Freedman, we affirmed the dismissal of a § 1983 complaint. Freedman’s estate had filed a complaint against police defendants and the City of Allentown because Freedman had committed suicide while in prison. It is significant for our purposes here that the complaint in Freedman charged that the defendants “knew or should have known” of Freedman’s “suicidal tendency and attempts” and “knew or should have known” that Freedman “posed a significant and substantial risk of suicide ... if left unaided or in possession of items with which he could take his own life.” Freedman, 853 F.2d at 1113. During Freedman’s questioning, there were revealed to the questioning officers prominent scars on Freedman’s elbow" }, { "docid": "9770759", "title": "", "text": "946 F.2d at 1023. To survive a motion to dismiss, therefore, plaintiffs complaint must do more than merely allege, in eonclusory fashion, that the defendants’ conduct “constitute[d] gross negligence and/or a deliberate indifference” to the detainee’s rights. See Complaint, ¶ 18. Instead, the plaintiff must plead facts which, when viewed in a light most favorable to plaintiff, support a claim for a constitutional violation, rather than simply a claim sounding in negligence. See Freedman v. City of Allentown, 853 F.2d at 1115. Thus, “when the factual scenario presented by plaintiff suggests that defendants [knew or] should have known that the prisoner was a suicide risk, and failed to take necessary and available precautions to protect the prisoner from self-inflicted wounds, the complaint will survive dismissal.” Id. (emphasis added). In the instant case, plaintiff simply asserts in a eonclusory fashion that Chief of Police Repp and various unknown officers of the Pottsville Police Department acted with “deliberate indifference” to the psychological needs of the decedent. See Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss, p. 12. Plaintiff, however, fails to craft any factual bas-relief that would allow us to find or infer that such a conclu sion is possible here. Plaintiff does not allege any facts concerning the mental history of the decedent nor does he provide any reason for this court to infer that defendants knew or should have known the decedent posed a particular risk of suicide, and that they disregarded this risk. The line between what constitutes mere negligence and what constitutes deliberate indifference for purposes of a constitutional claim arising under Section 1983 can be difficult to draw. Certainly, a denial of a reasonable request for medical treatment, an intentional refusal to provide known needed medical care, or a purposeful delay in providing this care have all been held to constitute deliberate indifference. See Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988). On the other hand, allegations amounting only to malpractice or negligence have consistently been held" }, { "docid": "9770766", "title": "", "text": "verdicts were consistent because the city’s policymakers, rather than the turnkey, were the city actors whose primary liability must be established in order to hold the city liable under Section 1983 for a failure to train. Id. at 1063. Although we acknowledge that plaintiff can fail to state a cause of action under Section 1983 as to individual municipal employees while properly pleading a case with respect to the municipality directly, we nonetheless find that this action cannot be maintained against the City on the basis of the bare allegations that Pottsville’s safety policies and failure to adequately train officers amount to deliberate indifference to the needs of a detainee. In Colburn I, in deciding whether plaintiff properly stated a claim against the municipality for inadequate safety policies or failure to train in a prison suicide case, the Third Circuit recalled the two-pronged test it first enunciated in Chinchello v. Fenton. 838 F.2d at 673 (citing 805 F.2d 126, 134 (3d Cir.1986)); see also Freedman v. City of Allentown, 853 F.2d at 1117 (reiterating the statement made in Chinchello outlining the two-pronged test forming the basis for municipal liability under Section 1983). In Chinchello, the Third Circuit suggested that at a minimum such liability could be imposed “only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval to the offending subordinate.” 805 F.2d at 133 (footnote omitted). In Colburn I, the Third Circuit further explained that in order to state a Section 1983 claim against a municipality, arising from a jailhouse suicide and premised on the failure to provide employees with adequate training, a plaintiff must allege a policymaker’s knowledge of a constitutionally violative incident or pattern of incidents arising from inadequate training. 838 F.2d at 673. See also Freedman v. City of Allentown, 853 F.2d at 1115-16 (discussing Colburn’s requirements for stating a Section 1983 claim based on a jailhouse suicide and alleging violations of constitutional rights arising from a" }, { "docid": "22993357", "title": "", "text": "evaluation of the first two Colburn I elements as well as the third. The requirement of a “particular vulnerability to suicide” speaks to the degree of risk inherent in the detainee’s condition. As several of our sister circuits have recently pointed out, the requirement of “reckless or deliberate indifference” implies that there must be “a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.” See, e.g., Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991); Popham v. City of Talladega, 908 F.2d 1561, 1563 (11th Cir.1990). Even where a strong likelihood of suicide exists, it must be shown that the custodial officials “knew or should have known” of that strong likelihood. As the latter portion of this phrase from Colburn I indicates, it is not necessary that the custodian have a subjective appreciation of the detainee’s “particular vulnerability.” Nevertheless, there can be no reckless or deliberate indifference to that risk unless there is something more culpable on the part of the officials than a negligent failure to recognize the high risk of suicide. Freedman v. City of Allentown, 853 F.2d 1111 (3d Cir.1988), illustrates the point. Jerry Freedman committed suicide while being detained in the Allentown Police Station. There was no allegation of “actual knowledge by the individual police officers of Freedman’s suicidal tendencies.” Id. at 1115. Rather, the plaintiffs relied on Colburn I and alleged that the defendants “should have known” that Freedman had a particular vulnerability to suicide. The plaintiffs based their theory on the “large prominent scars” that Freedman showed the defendants “on his wrists, inside of his elbows and neck.” Id. at 1116. The court was willing to assume “that a reasonably competent prison official should have known and identified these marks as ‘suicide hesitation cuts,’ as described by the forensic pathologist.” Id. Nevertheless, the court dismissed the plaintiffs’ claim because the allegations, if true, amounted only to negligence. “In the absence of any allegations suggesting more than mere negligence by the individual police officers in failing to recognize Freedman’s suicidal tendencies from the scars that were readily apparent, we conclude that plaintiffs" }, { "docid": "9770758", "title": "", "text": "convicted prisoners by the Eighth Amendment.”); Freedman v. City of Allentown, 853 F.2d at 1115; Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5th Cir.1986); Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir.1985). The Third Circuit, in Col-burn I, elaborated on the standard of liability to be applied in prison suicide cases. There, the court held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” Colburn I, 838 F.2d at 669. This standard was later reduced to a three factor test in Colburn II. In that case, the Third Circuit ruled that a plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of that vulnerability, and (3) those officers “acted with reckless indifference” to the detainee’s particular vulnerability. Colburn II, 946 F.2d at 1023. To survive a motion to dismiss, therefore, plaintiffs complaint must do more than merely allege, in eonclusory fashion, that the defendants’ conduct “constitute[d] gross negligence and/or a deliberate indifference” to the detainee’s rights. See Complaint, ¶ 18. Instead, the plaintiff must plead facts which, when viewed in a light most favorable to plaintiff, support a claim for a constitutional violation, rather than simply a claim sounding in negligence. See Freedman v. City of Allentown, 853 F.2d at 1115. Thus, “when the factual scenario presented by plaintiff suggests that defendants [knew or] should have known that the prisoner was a suicide risk, and failed to take necessary and available precautions to protect the prisoner from self-inflicted wounds, the complaint will survive dismissal.” Id. (emphasis added). In the instant case, plaintiff simply asserts in a eonclusory fashion that Chief of Police Repp and various unknown officers of the Pottsville Police Department acted with “deliberate indifference” to the psychological needs of the decedent. See Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to" }, { "docid": "12375485", "title": "", "text": "failing to recognize Freedman’s suicidal tendencies from the scars that were readily apparent, we conclude that plaintiffs have not alleged a viable section 1983 claim against those officers. It follows that there can be no claim based on these defendants’ failure to place Freedman in a special cell for prisoners known to need close monitoring. The district court, therefore, did not err in dismissing the complaint against the individual police officers. C. Plaintiffs seek to maintain the action against the City and the supervisory officials on the basis of an alleged policy not to establish a procedure, system or equipment whereby the prison officials could maintain visual surveillance or otherwise monitor prisoners of known suicidal tendencies. There is not even a modicum of factual support for this claim, and indeed the complaint itself refers to the existence of “a booking cell in the Detective Bureau where prisoners can be watched closely.” App. at 8. Because the failure to place Freedman in a specially monitored cell necessarily followed from the police officers’ failure to identify Freedman as a suicide risk, it is the latter omission, which we have concluded alleges at most negligence, that forms the essence of plaintiffs’ section 1983 claim. Plaintiffs have also alleged a policy not to appropriately train police officers “in the lawful and effective” handling of mentally disturbed persons or not to appropriate sufficient money for adequate police training. App. at 10. Although an official custom or policy may be inferred from omissions and informal acts as well as from formal acts, see Estate of Bailey, 768 F.2d at 506; see also Jackson, 645 F.Supp. at 927-28 (discussing official and municipal liability for failing to institute anti-suicide measures), there is not even a modicum of factual support for the allegation that the city deliberately elected not to fund or carry out training. In Colburn, we recognized that there may be circumstances in which a deficient training policy can form the basis for municipal liability under section 1983. Colburn, 838 F.2d at 672-73. However, we reiterated the statement made in Chinchello v. Fenton, 805 F.2d 126, 133" }, { "docid": "22993350", "title": "", "text": "detainee appeared to be emotionally upset, the matrons would talk to them in an effort to calm them down and would personally visit the cell more frequently. If a detainee were in need of medical attention, the matrons were instructed to inform the House Sergeant. Each shift had a crisis intervention officer on call who had train ing in handling emergency situations, including suicide. Attempted suicides were not uncommon. In the preceding ten years, Miller remembers approximately twenty attempts, two of which had been successful. Whalen had prevented one attempted suicide during her approximately two years of service as a matron. This was the only attempt she could recall. After high school, Whalen had received an emergency medical technician’s certificate from the National School of Health Technology, a curriculum requiring approximately 1,000 hours of curriculum. Thereafter, she had attended nursing school for half a year. At the time Whalen obtained employment with Upper Darby, she was employed by the Triage Ambulance Service. Miller was a housewife prior to her employment with Upper Darby. The booking process at the Upper Darby jail includes no formal physical or mental health screening. III. The plaintiffs claim presents difficult issues because no state actor directly inflicted harm on Stierheim. Nevertheless, it is established in this Circuit that the suicide of a pretrial detainee can support a recovery in a 42 U.S.C. § 1983 action. See Colburn I, supra; see also Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir.1989); Freedman v. Allentown, 853 F.2d 1111 (3d Cir.1988). Colburn I established the standard of liability to be applied in this circuit in prison suicide cases. There, we held that “if [custodial] officials know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability.” 838 F.2d at 669. Thus, a plaintiff in a prison suicide case has the burden of establishing three elements: (1) the detainee had a “particular vulnerability to suicide,” (2) the custodial officer or officers knew or should have known of" }, { "docid": "22391530", "title": "", "text": "we reversed the district court’s order of dismissal and held that, taking all the well-pleaded allegations as true and construing the complaint in the light most favorable to the plaintiff, the complaint stated a sufficient § 1983 cause of action. Because there had been no discovery establishing the facts alleged in the Colburn complaint, we reversed for further development of the record. In Freedman, we affirmed the dismissal of a § 1983 complaint. Freedman’s estate had filed a complaint against police defendants and the City of Allentown because Freedman had committed suicide while in prison. It is significant for our purposes here that the complaint in Freedman charged that the defendants “knew or should have known” of Freedman’s “suicidal tendency and attempts” and “knew or should have known” that Freedman “posed a significant and substantial risk of suicide ... if left unaided or in possession of items with which he could take his own life.” Freedman, 853 F.2d at 1113. During Freedman’s questioning, there were revealed to the questioning officers prominent scars on Freedman’s elbow and neck, characterized as “suicide hesitation cuts,” and Freedman, it was alleged, had attempted suicide at least one time prior to his actual suicide in jail. The district court in Freedman dismissed Freedman’s complaint because it found nothing more than mere negligence on the part of the individual officers and because there were no facts asserted which supported the allegation that the policemen knew or should have known of Freedman’s suicidal tendencies. In Freedman we held that a prison custodian is not the guarantor of a prisoner’s safety and that “we cannot infer from the prisoner’s act of suicide itself that the prison officials have recklessly disregarded their obligation to take reasonable precautions to safeguard the safety of prisoners entrusted to their care.” Freedman, 853 at 1115. Freedman further instructed that prison officials must actually know of the suicidal tendencies of a prisoner and must have ignored their responsibility to take reasonable precautions in the light of that knowledge. Moreover, Freedman holds, as Judge Becker has reported, (Becker J., Op. p. 465) that even if" }, { "docid": "22195555", "title": "", "text": "according to Officer Pa-nati, the turnkey, was not markedly different than other intoxicated persons who had been committed previously. This case is quite unlike those where individual jailers had actual knowledge of, or had reason to suspect suicidal tendencies on the part of specific detainees. In those cases, the conduct of a defendant turnkey has been measured under the deliberate indifference standard for purposes of section 1983. It is important here to remember that in determining the liability of the City, the question is not whether Officer Panati was deliberately indifferent (the jury found he was not), but whether the Philadelphia policymakers had adopted or followed a policy of deliberate indifference. Plaintiff does not argue that the City’s policy failed to protect those prisoners it knew were suicidal, rather she urges on this Court a far broader and unprecedented basis of liability. She argues that based solely on the statistics of prior prisoner suicides, the City should have known not only that the decedent was suicidal but that its policies were inadequate. Essentially, her position is that the City was deliberately indifferent because it did not supplement its existing policy in the face of a suicide frequency for intoxicated detainees of .00015. That is at best a tenuous argument that I am not prepared to accept. This Court in Colburn v. Upper Darby Township, (“Colburn II”), 946 F.2d 1017, 1024 (3d Cir.1991), observed that “several of our sister circuits have recently pointed out the requirement of ‘reckless or deliberate indifference’ implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.’ ” See also Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991). The suicide frequency for intoxicated detainees of .00015 fails to establish that as a “class” these detainees presented such a “strong likelihood” of committing suicide that the City was indifferent in not taking additional precautions. Cf. Colburn II, at 1026 (the Court was unwilling on the record in that case to equate intoxication with a “particular vulnerability to suicide”); Belcher v. Oliver, 898 F.2d 32, 35 (4th Cir.1990). The majority’s" }, { "docid": "22391531", "title": "", "text": "and neck, characterized as “suicide hesitation cuts,” and Freedman, it was alleged, had attempted suicide at least one time prior to his actual suicide in jail. The district court in Freedman dismissed Freedman’s complaint because it found nothing more than mere negligence on the part of the individual officers and because there were no facts asserted which supported the allegation that the policemen knew or should have known of Freedman’s suicidal tendencies. In Freedman we held that a prison custodian is not the guarantor of a prisoner’s safety and that “we cannot infer from the prisoner’s act of suicide itself that the prison officials have recklessly disregarded their obligation to take reasonable precautions to safeguard the safety of prisoners entrusted to their care.” Freedman, 853 at 1115. Freedman further instructed that prison officials must actually know of the suicidal tendencies of a prisoner and must have ignored their responsibility to take reasonable precautions in the light of that knowledge. Moreover, Freedman holds, as Judge Becker has reported, (Becker J., Op. p. 465) that even if a prison official should have known and identified Freedman’s scars as “suicide hesitation cuts” the failure to recognize them as such, without more, amounted only to negligence and therefore failed to support a claim under § 1983. If Freedman, in accordance with rule 12(b)(6) principles, did not state a claim under § 1983, then a fortiori, in the present case where evidence has been taken and that evidence has been uncontradict-ed and undisputed, summary judgment for the officers must be affirmed. Accepting Freedman’s instructions, it would appear that even had Ferriola and Chesko known of Ronald’s prior suicide attempts, which they unequivocally denied, that knowledge can be deemed no more than the knowledge which the Freedman defendants had of Freedman’s “suicide hesitation cuts” and as such, could not allow a constitutional claim for damages. Freedman therefore compels summary judgment in favor of the police officers in a case such as the present one, where the record does not demonstrate knowledge and “deliberate indifference” on their part. I therefore respectfully concur in the result Judge Becker" }, { "docid": "12375484", "title": "", "text": "In Colburn, however, we found a basis from the allegations pleaded and proffered to conclude that plaintiff might be able to show more than mere negligence. There, in addition to the obvious scars on the prisoner’s wrists, we noted that the township’s police were familiar with the prisoner and knew that on the preceding day she had jumped from a window following an argument with her boyfriend, that the detaining officer had to prevent her from swallowing three Valium pills she had removed from her purse, and that one of the police officers found a live round of ammunition in decedent’s pocket while searching her. 838 F.2d at 670. These allegations, plus the fact that the suicide was by shooting with a gun that the searching officer allegedly failed to find during a search of the prisoner, who was scantily dressed in a halter and shorts, id. at 664-65, distinguished that factual scenario from the situation before us. In the absence of any allegations suggesting more than mere negligence by the individual police officers in failing to recognize Freedman’s suicidal tendencies from the scars that were readily apparent, we conclude that plaintiffs have not alleged a viable section 1983 claim against those officers. It follows that there can be no claim based on these defendants’ failure to place Freedman in a special cell for prisoners known to need close monitoring. The district court, therefore, did not err in dismissing the complaint against the individual police officers. C. Plaintiffs seek to maintain the action against the City and the supervisory officials on the basis of an alleged policy not to establish a procedure, system or equipment whereby the prison officials could maintain visual surveillance or otherwise monitor prisoners of known suicidal tendencies. There is not even a modicum of factual support for this claim, and indeed the complaint itself refers to the existence of “a booking cell in the Detective Bureau where prisoners can be watched closely.” App. at 8. Because the failure to place Freedman in a specially monitored cell necessarily followed from the police officers’ failure to identify Freedman" }, { "docid": "12375483", "title": "", "text": "behavior en route to the jail, the arresting officer was told by the prisoner’s father that the prisoner had suffered a mental breakdown and was shown that he wore two medical alert bracelets, and there were jail records showing that the prisoner had attempted suicide during an earlier confinement. Id. at 1184. Plaintiffs argue, however, that Freedman’s large prominent scars on his wrists, inside of his elbows and neck were shown by Freedman to the individual defendants and were, in any event, readily apparent when Freedman was searched. Because we must view the complaint in the light most favorable to plaintiffs we will assume that a reasonably competent prison official should have known and identified these marks as “suicide hesitation cuts,” as described by the forensic pathologist. Even if so, the failure to recognize them as such, without more, amounts only to negligence and therefore fails to support a claim under section 1983. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Plaintiffs seek to analogize this case to Colburn. In Colburn, however, we found a basis from the allegations pleaded and proffered to conclude that plaintiff might be able to show more than mere negligence. There, in addition to the obvious scars on the prisoner’s wrists, we noted that the township’s police were familiar with the prisoner and knew that on the preceding day she had jumped from a window following an argument with her boyfriend, that the detaining officer had to prevent her from swallowing three Valium pills she had removed from her purse, and that one of the police officers found a live round of ammunition in decedent’s pocket while searching her. 838 F.2d at 670. These allegations, plus the fact that the suicide was by shooting with a gun that the searching officer allegedly failed to find during a search of the prisoner, who was scantily dressed in a halter and shorts, id. at 664-65, distinguished that factual scenario from the situation before us. In the absence of any allegations suggesting more than mere negligence by the individual police officers in" }, { "docid": "14362742", "title": "", "text": "The judge granted Decatur’s motion to dismiss for failure to sufficiently allege a policy or custom actionable under Section 1983. Plaintiff does not challenge this ruling. . Plaintiff alleges that defendant Sergeant Richard Ryan was one of the arresting officers who failed to offer psychiatric assistance to Howard or to maintain observation of him in custody (R. 19 at 2-3), but the deposition of his brother, Officer Roger Ryan, not a defendant, shows that he was the arresting officer who helped place Howard in the jail cell (R. 48 at 7). Presumably this error will be corrected as the litigation proceeds under Rule 15(c) of the Federal Rules of Civil Procedure. Unless otherwise indicated, the name Ryan in the remainder of this opinion will refer to Roger Ryan. . Rincones’ deposition was taken under the name Paula J. Shane. . The acts of defendants were said to violate the Illinois Municipal Jail and Lockup Standards providing that: a. No prisoner with a known history of a mental disorder or mental defect, or who shows evidence of such condition shall be bound in any municipal jail or lockup. b. In the event such type prisoner is received, he shall be afforded protective custody and individualized supervision until such time as he is transferred to another facility. c. Such prisoner shall immediately be referred for appropriate professional study and diagnosis. . Case law from other Circuits confirms the correctness of this rule. Elliott v. Cheshire Co., 940 F.2d 7, 10-11 (1st Cir.1991) (\"The key to deliberate indifference in a prison suicide case is whether the defendants knew, or reasonably should have known, of the detainee’s suicidal tendencies”); Colburn v. Upper Darby Township, 838 F.2d 663, 669 (3rd Cir.1988) (\"If such officials know or should know of the particular vulnerability to suicide of an inmate then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability”), certiorari denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808; Belcher v. Oliver, 898 F.2d 32, 34-35 (4th Cir.1990) (applying deliberate indifference standard to a pre-trial detainee’s suicide); Partridge" } ]

[ { "docid": "12275599", "title": "", "text": "guilty plea after sentencing, a defendant \"must prove that failure to allow withdrawal of the guilty plea would result in a 'miscarriage of justice' \") (citation omitted). Because defendant here does not make a claim of actual innocence, he must show that he has suffered actual prejudice as a result of the errors he complains about. As further discussed infra, defendant has shown that he was prejudiced by the judge's and Assistant United States Attorney's misinformation concerning his prospects for deportation once he pleaded guilty. . In its opposition, the government does not address defendant’s Rule 11 challenges. Rather, it analyzes all of defendant’s challenges pursuant to the ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . The Russell Court’s analysis was made in response to a Rule 32(d) challenge, which at that time \"permit[ted] district courts to allow plea withdrawals either before or after sentencing.” Russell, 686 F.2d at 38. . Pursuant to Rule 11, \"[a] defendant may withdraw a plea of guilty ... (1) before the court accepts the plea, for any or no reason; or (2) after the court accepts the plea, but before it imposes sentence ....\" if the court rejects the plea agreement or if \"the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d) (emphasis added). . Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), a defendant is not required to acknowledge actual culpability to enter a guilty plea. . Furthermore, defendant notes that the court also erroneously stated that it would recommend to the Bureau of Prisons that the defendant serve time in a boot camp, because participation in such a program would eliminate a significant amount of time from the defen dant’s sentence, although in reality defendant was not eligible for such a program due to his immigration status because he is subject to immediate deportation. Sent. Tr. at 12; Declaration of Philip Singh (\"Singh Decl.\") V 4. . Because the Court concludes that it must afford the" } ]

[ { "docid": "6361692", "title": "", "text": "in Willett’s petition had not been presented in state court, and it dismissed the petition without an evidentiary hearing. In this appeal, Willett contends that the district court erred. We agree. I. A guilty plea is constitutionally valid only if the defendant has made a “voluntary and intelligent choice” among the various courses of conduct open to him or her. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In North Carolina v. Alford, the United States Supreme Court was confronted with the question whether a defendant’s plea of guilty in state court was rendered constitutionally invalid because it was accompanied by a protestation of innocence. The Court held, “In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, . . . the trial judge did not commit constitutional error in accepting it.” 400 U.S. at 38, 91 S.Ct. at 168. The Court elaborated as follows: Because of the importance of protecting the innocent and of insuring that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea, . . . and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence. . In the federal courts, Fed.Rule Crim. Proc. 11 expressly provides that a court “shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” 400 U.S. at 38 n. 10, 91 S.Ct. at 167-168 n. 10 (citations omitted). When presented with an equivocal plea entered in a state adjudication, this court, following Alford, found the plea valid because it was “knowingly and voluntarily entered and surrounded by other circumstances establishing [defendant’s] guilt.”" }, { "docid": "9517473", "title": "", "text": "as a crime of violence and accordingly applying a sixteen-level sentencing enhancement pursuant to U.S.S.G. § 2L1.2. We therefore AFFIRM the district court’s sentence. . As is relevant to this opinion, a prior conviction that would qualify for the “crime of violence” enhancement under § 2L1.2 would also qualify for the enhancement under § 4B1.2. See U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n. 1 (2011). . In an unpublished opinion, we determined that a Florida statute involving \"stealthy snatching” did not meet the generic definition of robbery but did \"by its nature, present! ] a serious potential risk of physical injury to another.” United States v. Bryant, 312 Fed. Appx. 698, 702 (5th Cir.2009) (internal quotation marks omitted). . See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). An Alford plea allows a defendant to plead guilty while maintaining his factual innocence. Our circuit has previously observed that this type of plea is “counter-intuitive” and \"may prove confusing to some defendants.” United States v. Punch, 709 F.2d 889, 895 & n. 12 (5th Cir. 1983). There was evidently some confusion here regarding what Flores-Vasquez intended to admit versus what he actually admitted in the proffer. . The plea agreement further indicates that Flores-Vasquez \"does not doubt, and does not dispute” the Government’s proffer of facts. . Flores-Vasquez argues that the plea agreement is thus ambiguous and should be construed against the Government. We note, however, that the plea agreement we are asked to interpret in this case is not one currently before the court. Our disposition of this appeal makes it unnecessary to decide the issue of whether we must construe a plea agreement from a prior conviction (rather than the conviction on appeal) against the Government. . See Shepard, 544 U.S. at 26, 125 S.Ct. 1254. . Further bolstering our conclusion, the D.C. Circuit has noted that when a defendant admits to violent aspects of a robbery under § 22-2801, \"the trial court [is] precluded from accepting his plea based on a finding that the appellant committed the robbery merely by" }, { "docid": "9509223", "title": "", "text": "2, 1969, the date of its McCarthy decision. Halliday v. United States, 1969, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16. We hold that the trial judge who accepted the guilty pleas tendered by Strother in 1963 (the same judge who has denied Strother’s subsequent petitions on motions for post-conviction relief) prior to accepting the pleas more than adequately complied with the Rule 11 procedural requirements then in effect. We find without legal significance the fact that Strother initially resisted entering a guilty plea to the conspiracy charge because he did not want to place his co-defendant in jeopardy. In Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, the Court held that where the defendant was advised by competent counsel and tendered his plea of guilty after his co-defendant, who had already given a confession, decided to plead guilty and thereby became available to testify against the defendant, the defendant’s plea of guilty was not rendered involuntary because of a possible fear of the death penalty if the case were tried to a jury. It was held in North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, that a plea of guilty to the offense of second degree murder was not compelled within the meaning of the Fifth Amendment merely because the plea was entered to avoid the possibility of the death penalty. The Court additionally ruled that the defendant’s claim of innocence did not bar the trial court from properly accepting the guilty plea where the state’s first degree murder case was strong and the defendant was represented by competent counsel. In Strother’s case, the United States Attorney refused to permit him to plead guilty to the robbery charge alone because he did not want to undermine the government’s case against Szoyka. With the assistance and advice of competent and experienced counsel, Strother elected to tender a guilty plea to the conspiracy count. No reason in law is apparent to us which would permit him at this time to withdraw that plea and to escape its consequences." }, { "docid": "2003172", "title": "", "text": "MURNAGHAN, Circuit Judge: George Richard Morrow, Jr. was accused of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(a) & (d), by participating in a conspiracy to manufacture, possess, and distribute methamphetamine and then to invest the proceeds of the operation in real estate acquisitions. On February 2, 1987, Morrow entered a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), pleading guilty though maintaining his innocence. Morrow pled guilty to Count I of a forty-three count indictment in return for the government’s agreement to dismiss the remaining counts. The district court sentenced Morrow to a term of twelve years in prison and fined him $10,000. Thereafter, Morrow filed an ultimately unsuccessful motion under Fed.R.Crim.P. 35 for a reduction of his sentence. On August 3, 1988, Morrow filed a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. United States District Court Judge Robert Potter affirmed the magistrate’s denial of Morrow’s motion and accepted the magistrate’s memorandum and recommendation in its entirety. Morrow has appealed charging that there were insufficient facts before the district court from which it could find a factual basis for entering judgment on his guilty plea. Morrow further charges that, because the government did not inform the court that his plea was linked to that of another codefendant in the conspiracy, his father, George Richard Morrow, Sr., the trial court could not make a proper inquiry into the voluntariness of his plea. I. At the same Rule 11 proceeding at which Morrow pled guilty, codefendants George Richard Morrow, Sr. (hereinafter Morrow, Sr.), John Ernest Dean, and Harold Hugh Dean also entered guilty pleas. Both the Morrows maintained their innocence despite their pleas. At the hearing Dallas McKnight, a special agent with the Internal Revenue Service (IRS), testified that his investigation had revealed the existence of nine methamphetamine laboratories operating in both North and South Carolina between 1979 and 1984. During the course of the investigation, McKnight interviewed at least six of the people who worked in the labs. McKnight testified that" }, { "docid": "21827361", "title": "", "text": "no argument whatsoever to support it. Further, his vague and sparse references to the claim in the 26-page petition, were insufficient to alert the Wisconsin Supreme Court of either the operative facts of the claim or the controlling federal law. For example, on the final page of his petition where he addresses his state-law claim based upon the prosecutor’s closing argument, he states “[l]ikewise, counsel’s decision not to object was not a reasonable strategic deci sion.” R. 17-10 at 27. But, he does not explain why this is true or cite to any decisions—federal or state—to support this assertion. This was not enough to meet his burden of fairly presenting the claim to the Wisconsin Supreme Court. Because the petition did not allow the Wisconsin Supreme court the opportunity to address this federal constitutional claim, the doctrine of procedural default precludes our review of the issue on the merits. III. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s denial of habeas relief. . All record citations are to the record in the United States District Court for the Eastern District of Wisconsin. . A Miranda-Goodchild hearing is conducted to determine the admissibility of confessions, see State v. Jiles, 262 Wis.2d 457, 663 N.W.2d 798, 806-07 (2003) (discussing the purpose of a Miranda-Goodchild hearing), and is named after Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and State ex rel. Goodchild v. Burke, 27 Wis.2d 244, 133 N.W.2d 753 (1965). . An Alford plea allows a criminal defendant to enter a guilty plea while maintaining his innocence, as approved by the Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). . Wisconsin law requires that a defendant pursue a \"motion for post-conviction or post-disposition relief” in the trial court before filing the direct appeal if the basis for relief was not previously raised. Wis. Stat. § 809.30(h). . Both parties consented to magistrate jurisdiction pursuant to 28 U.S.C. § 636(c) and the case was assigned to and decided by Magistrate Judge William E. Duffin. . Although" }, { "docid": "22138090", "title": "", "text": "plea was voluntarily and knowingly made by the accused. The Supreme Court affirmed on the basis that the guilty pleas were both “voluntary” and “intelligent,” citing Boykin. Nowhere in Brady was anything said by the Court to indicate that specific articulation of the three constitutional rights set forth in Boykin was required when the plea was entered, the Court stating in footnote 4 (397 U.S. at 747, 90 S.Ct. at 1468) that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understanding^ and voluntarily.” To the same effect as the holding in Brady, see Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), decided the same day. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), decided the year after Boykin, the Supreme Court said in determining the validity of guilty pleas that “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); . . .” Id., 400 U.S. at 31, 91 S.Ct. at 164. The Supreme Court declined to vacate Alford’s guilty plea because the record in the post-conviction state court hearing “confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this ease affirmatively indicates that Alford was aware of the consequences of his plea of guilty and of the rights waived by the plea, no issues of substance under Boykin v. Alabama (citation omitted), would be presented even if that case was held applicable to the events here in question.” Id., 400 U.S. at 29 n. 3, 91 S.Ct. at 163. We note that the Court’s decision was predicated on evidence received at the post-conviction hearing. As in Brady and Parker, there is no indication that any" }, { "docid": "10286068", "title": "", "text": "and sentencing, showing that petitioner voluntarily, knowingly, and understandingly entered his plea of guilty . ” Brodkowicz v. Swenson, 357 F.Supp. 178, 189 (W.D.Mo.1973). The “extrinsic” record theory is buttressed, in the opinion of some courts, by dicta contained in a footnote in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970): “At the state court hearing on post-conviction relief, the testimony confirmed that Alford had been fully informed by his attorney as to his rights on a plea of not guilty and as to the consequences of a plea of guilty. Since the record in this case affirmatively indicates that Alford was aware of the consequences of his plea of guilty, and of the rights waived by the plea, no issues of substance under Boykin v. Alabama, 395 U.S. 238, [89 S.Ct. 1709, 23 L.Ed.2d 274] (1969), would be presented even if that case was held applicable to the events here in question.” 400 U.S. at 29 (n. 3), 91 S.Ct. at 163 (emphasis added) Although not involved in the central issue raised in Alford, the above quotation was used as authority by the South Carolina Supreme Court in reversing the circuit judge in Vickery v. State, supra, and in holding that a guilty plea facially defective — in a Boykin sense — can be salvaged by resort both to a record of the colloquy between the trial judge and the defendant when the plea is taken and evidence adduced at a reconstruction hearing, which reveals whether the defendant knowingly and voluntarily entered his plea. This court feels that the Court of Appeals for the Fourth Circuit inferentially reached the same result in Banks v. State, mem. decis. (July 16, 1973) where the court held that: “The transcript of the plea inquiry does not contain the factual basis for the plea; however, at the hearing, (state post-conviction relief hearing), Banks’ attorney stated that both he and the solicitor explained the factual situation to the judge but that this argument was not transcribed. While it would be a better practice for the court to have" }, { "docid": "23129910", "title": "", "text": "(11th Cir.1997) (treating coram nobis petition filed after completion of sentence as a true coram nobis petition) and Granville 613 F.2d at 126 n. 1 (construing § 2255 motion filed after completion of sentence as coram nobis petition) with Downs-Morgan, 765 F.2d at 1536 (construing coram nobis petition as § 2255 motion where petitioner was in custody when pleading was filed despite fact that petitioner completed sentence during pendency of appeal). Accordingly, the full expiration of Brown’s sentence during the pendency of this appeal has no bearing on the question of whether Brown’s pleading should be construed as a coram nobis petition or as a § 2255 motion. . We note that Brown’s plea also stands in contrast to a plea made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which a defendant permits judgment to be entered against him on an intelligent plea of guilty accompanied by a claim of innocence. Even an Alford plea requires that the defendant's legal admission of guilt be entered \"voluntarily, knowingly, and understandingly.” Id. at 37, 91 S.Ct. at 167. As Justice White explained in Henderson: Alford is based on the fact that the defendant could intelligently have concluded that, whether he believed himself to be innocent ... the State's case against him was so strong that he would have been convicted anyway.... Plainly, a defendant cannot \"intelligently” reach that conclusion [to plead guilty] if he does not know the elements of the crime to which he is pleading and therefore does not know what the State has to prove; and his ignorant decision to plead guilty under such circumstances is not a reliable indication that he is in fact guilty. 426 U.S. at 648 n. 1, 96 S.Ct. at 2259 n. 1 (White, J., concurring). We find that reasoning to be unassailable. . The government’s failure to raise a Teague argument in the district court does not deprive us of discretion to consider that argument on appeal. See Spaziano v. Singletary, 36 F.3d 1028, 1041-42 (11th Cir.1994). Additionally, we note that the government" }, { "docid": "23685053", "title": "", "text": "e.g., Taylor, 495 U.S. at 602, 110 S.Ct. 2143; United States v. Hernandez-Hernandez, 431 F.3d 1212 (9th Cir.2005) (relying on stipulations that were the factual basis for .a guilty plea to determine that defendant’s prior conviction was for a crime of violence); Rodriguez-Rodriguez, 393 F.3d at 857-58 (holding that because defendant’s conviction contained the element of “burglary of a dwelling” which was not a required element of the state crime for which he was convicted, it was a crime of violence under the sentencing guidelines); Corona-Sanchez, 291 F.3d at 1211 (“[I]f a defendant enters a guilty plea, ... court[s] may consider the charging documents ... to determine whether [he has] pled guilty to the elements of the generic crime.”); U.S. v. Sweeten, 933 F.2d 765, 769-70 (9th Cir.1991) (finding error when the district court applied Taylor’s modified categorical approach without considering the defendant’s indictment and guilty plea). Compare Wenner, 351 F.3d at 974 (“The government does not point to a signed plea agreement ... demonstrat[ing] that Wen-ner was convicted as charged ....”) with Corona-Sanchez, 291 F.3d at 1211 (“[C]harging papers may be considered in combination with a signed plea agreement.”). The defense attempts to ■ distinguish these cases by arguing that Guerrero-Velasquez entered an Alford plea for the burglary in question — that is to say he pled guilty to receive a lower sentence while maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 5.Ct. 160, 27 L.Ed.2d 162 (1970). This contention is without merit. Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in the context of the modified categorical approach under Taylor. The question under the sentencing guidelines is whether a defendant has “a conviction for a ... crime of violence,” not whether the defendant has admitted to being guilty of such a crime. See U.S.S.G. § 2L1.2(b)(1)(A) (2003) (emphasis added). We note that our approach is in accord with that of the Second Circuit, the only other federal court of appeals to have issued a published opinion addressing a similar question. In Abimbola v. Ashcroft," }, { "docid": "20309527", "title": "", "text": "Superior Court is not “required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” D.C.Code § 23-110. Accordingly, it declined to address the ineffective assistance of trial counsel claim in light of Adams’s “fail[ure] to present a reason why he did not raise these issues in either his appeal or in his previous motions.” (Def.’s Reply, Ex. 2-B at 3.) Adams cannot now bring his various allegations that his trial counsel was ineffective in this federal forum. His lone justification for doing so — that his prior attempts to challenge his conviction and sentence in D.C. court on this basis have been unsuccessful — is insufficient. “It is well-established that the mere denial of relief by the local courts does not render the local remedy inadequate or ineffective.” Joyner v. O’Brien, No. 09-913, 2010 WL 199781, at *2 (D.D.C. Jan. 15, 2010) (citations omitted); see Corley v. U.S. Parole Comm’n, 709 F.Supp.2d 1, 5 (D.D.C.2009) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)); see also Morton v. United States, No. 07-5253, 2008 WL 4726051, at *1 (D.C.Cir. June 12, 2008) (per curiam) (denying request for certificate of appealability on the grounds that appellant “may not challenge his District of Columbia convictions in federal court unless his remedy under D.C.Code § 23-110 is inadequate or ineffective to test the legality of his detention ..., and [t]he § 23-110 remedy ... is not considered inadequate or ineffective simply because the requested relief has been denied”). Thus, this Court lacks jurisdiction over these claims. See Williams, 586 F.3d at 998 (§ 23-110 “divests federal courts of jurisdiction to hear habeas petitions by prisoners who could have raised viable claims pursuant to § 23 — 110(a)”). B. The “Actual Innocence” Exception Does Not Apply Adams acknowledges the procedural bar to claims arising from alleged trial errors. (See Pet. at 11-15; see also Pl.’s Resp. to Gov’t Brief Opp’n (“Pet’r Opp’n”).) Relying on Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), Adams attempts to overcome the “cause and prejudice” bar by coupling" }, { "docid": "9373840", "title": "", "text": "For the reasons stated herein, we deny Beck’s application for a certificate of ap- pealability and dismiss the appeal. DISMISSED . One count of capital murder subsequently was nolle prossed, and Beck was permitted to withdraw his plea of guilty on that count. . Beck named Ronald Angelone, Director of the Virginia Department of Corrections, as respondent. For ease of reference, we will refer to respondent as \"the Commonwealth\" throughout this opinion. .Because Beck's petition for writ of habeas corpus was filed after the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, the amendments to 28 U.S.C. § 2254 effected by section 104 of the AEDPA govern the resolution of this case. Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). . Because he maintained that he did not rape Marks, Beck entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 33, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (A guilty plea is not inconsistent with a claim of innocence because reasons other than the fact that he is guilty may induce the defendant to plead guilty; thus, the defendant \"may voluntarily, knowingly, and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”), to the count charging him with the rape of Marks and the count charging him with the use of a firearm during the commission of a rape. . Subsequently, the count charging Beck with the capital murder of Marks, Miller, and Kap-lan as part of a single act or transaction was nolle prossed, and Beck was permitted to withdraw his plea of guilty on that count. .On direct appeal. Beck raised the following claims: I. The trial court erred in denying defendant’s motion to prohibit the imposition of the death penalty; II. The trial court erred in receiving victim impact evidence front individuals who were not related to the victims; III. The trial court erred in" }, { "docid": "23685054", "title": "", "text": "F.3d at 1211 (“[C]harging papers may be considered in combination with a signed plea agreement.”). The defense attempts to ■ distinguish these cases by arguing that Guerrero-Velasquez entered an Alford plea for the burglary in question — that is to say he pled guilty to receive a lower sentence while maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 91 5.Ct. 160, 27 L.Ed.2d 162 (1970). This contention is without merit. Whether or not a defendant maintains his innocence, the legal implications of a guilty plea are the same in the context of the modified categorical approach under Taylor. The question under the sentencing guidelines is whether a defendant has “a conviction for a ... crime of violence,” not whether the defendant has admitted to being guilty of such a crime. See U.S.S.G. § 2L1.2(b)(1)(A) (2003) (emphasis added). We note that our approach is in accord with that of the Second Circuit, the only other federal court of appeals to have issued a published opinion addressing a similar question. In Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir.2004), that court concluded that an Alford plea was a conviction for purposes of the Immigration and Naturalization Act. In doing so, it drew no greater distinction between an Alford plea and any other guilty plea than we do here. See id. at 181 (noting that the relevant question is whether there was a conviction, “as opposed to an admission of guilt”); id. (“As the plain language indicates, ‘conviction’ includes a guilty plea. An Alford plea is a guilty plea.”); id. (“The fact that his conviction was the result of an Alford plea is immaterial .... ”); id. at 180 (“We agree with the district court that Abimbola’s argument is meritless.”). III. CONCLUSION Because the district court misapplied the modified categorical approach under Taylor in sentencing Guerrero-Velasquez, we vacate his sentence and remand to the district court for resentencing under the discretionary guidelines. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc); Rodriguez-Rodriguez, 393" }, { "docid": "23018083", "title": "", "text": "Fifth Amendment. We are not persuaded by Mr. Wirsch-ing’s contention that the fact that he entered an Alford plea to sex offense for which he was incarcerated indicates that the CDOC has compelled self-incriminating testimony. In our view, the Alford plea does not affect the Fifth Amendment compulsion analysis. An Alford plea is one in which a defendant may maintain his innocence while agreeing to forego his right to a trial. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (“An individual accused of [a] crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”); see also United States v. Tunning, 69 F.3d 107, 110 (6th Cir.1995) (“In its strictest sense, then, an ‘Alford plea’ refers to a defendant who pleaded guilty but maintained that he is innocent.”) (internal quotation marks omitted). “However, for such a plea to be valid, it must be based on the defendant’s intelligent conclusion that ‘the record before the judge contains strong evidence of actual guilt.’ ” United States v. Maez, 915 F.2d 1466, 1467 (10th Cir.1990) (quoting Alford, 400 U.S. at 37, 91 S.Ct. 160); see also United States, v. Mackins, 218 F.3d 263, 268 (3rd Cir.2000) (“As Alford and the cases which followed in its wake made clear, however, there must always exist some factual basis for a conclusion of guilt before a court can accept an Alford plea; indeed, a factual basis for such a conclusion is ‘an essential part’ of an Alford plea.”). From our reading of Justice O’Connor’s concurring opinion in McKune, we see no indication that whether the defendant has previously admitted or failed to admit the sexual misconduct at issue is a factor in the compulsion analysis. Instead, what matters are the consequences of the prisoner’s failure to admit to the offense while he is incarcerated, and the analysis turns on the severity of those consequences. That reading of McKune is borne out by our approach in Searcy. There, the" }, { "docid": "2441521", "title": "", "text": "§ 16.46. The FBI’s CRS is a system of records specifically exempt from the individual access provision and other provisions of the Privacy Act to the extent permitted under 5 U.S.C. § 552a(j)(2), as implemented by 28 C.F.R. § 16.96. CRS (Justice/FBI-002) documents are exempt from ... 5 U.S.C. § 552a(c)(3), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G) and (H), (e)(5), (e)(8), (f) and (g). See 28 [C.F.R.] § 16.96. In sum, any responsive CRS records about plaintiff are exempt under applicable Privacy Act statutory and regulatory authority. Hardy Decl. ¶ 11 (footnote omitted). In other words, Plaintiff cannot enforce under § 552a(g) a violation of § 552a(e)(5) be-causé the CRS is exempt from both of these Privacy Act - provisions. Plaintiffs complaint fails to state a Privacy Act claim upon which relief can be granted, and therefore must be dismissed. See, e.g., Rush v. Samuels, 82 F.Supp.3d 470, 485 (D.D.C.2015). III. CONCLUSION Because the complaint fails to state a Privacy Act claim upon which relief can be granted, the Court will grant the FBI’s motion to dismiss. An Order is issued separately. . “An Alford plea is one where the defendant \"‘‘entérs a guilty plea while maintaining his innocence.” Corley v. U.S. Parole Comm’n, 709 F.Supp.2d 1, 3 n.3 (D.D.C.2009) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). . The FBI’s Central Records System is exempt from subsections (d) and (g) \"because -«.these provisions concern individual access to investigative records, compliance with which could compromise sensitive information classified in the interest of national security, interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source or disclose information which would constitute an unwarranted invasion of anoth- . er individual’s personal privacy, reveal a sensitive investigative technique, or constitute. a potential danger to the health oy, safety to law enforcement personnel.” 28 C.F.R. § 1’6.96(b)(2). CRS’ is exempt from subsection (e)(5) because; • ■ [I]n the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely and complete." }, { "docid": "2441522", "title": "", "text": "dismiss. An Order is issued separately. . “An Alford plea is one where the defendant \"‘‘entérs a guilty plea while maintaining his innocence.” Corley v. U.S. Parole Comm’n, 709 F.Supp.2d 1, 3 n.3 (D.D.C.2009) (citing North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). . The FBI’s Central Records System is exempt from subsections (d) and (g) \"because -«.these provisions concern individual access to investigative records, compliance with which could compromise sensitive information classified in the interest of national security, interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source or disclose information which would constitute an unwarranted invasion of anoth- . er individual’s personal privacy, reveal a sensitive investigative technique, or constitute. a potential danger to the health oy, safety to law enforcement personnel.” 28 C.F.R. § 1’6.96(b)(2). CRS’ is exempt from subsection (e)(5) because; • ■ [I]n the collection of information for law enforcement purposes it is impossible to determine in advance what information is accurate, relevant, timely and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new signifi-canee as further investigation brings new details to light. The restrictions imposed by subsection (e)(5) would limit the ability of trained investigators and intelligence analysts to exercise their judgment in reporting on investigations and impede the development of criminal intelligence necessary for effective law enforcement. In addition, because many of these records come from other federal, state, local, joint, foreign, tribal, and international agencies, it is administratively impossible to ensure compliance with this provision. 28 C.F.R. § 16.96(b)(6)." }, { "docid": "6361691", "title": "", "text": "that his plea was invalid because it did not have a factual basis. After a hearing at which Willett was represented by counsel, the Georgia superior court refused to issue the writ because it found that his plea had been entered voluntarily and intelligently. The Georgia Supreme Court then denied Willett’s application for a certificate of probable cause to appeal. Willett filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus in the United States District Court for the Middle District of Georgia in November 1976. He argued that his guilty plea was invalid be cause the state courts did not review the evidence on the record to make a factual determination of his guilt although he claimed innocence, the trial court denied him effective assistance of counsel, an investigating official promised him a six-month sentence and threatened him with a death penalty, and the prosecution knowingly concealed potentially favorable evidence. The district court adopted the state court’s conclusion that Willett’s plea was entered voluntarily and found that other issues raised in Willett’s petition had not been presented in state court, and it dismissed the petition without an evidentiary hearing. In this appeal, Willett contends that the district court erred. We agree. I. A guilty plea is constitutionally valid only if the defendant has made a “voluntary and intelligent choice” among the various courses of conduct open to him or her. North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In North Carolina v. Alford, the United States Supreme Court was confronted with the question whether a defendant’s plea of guilty in state court was rendered constitutionally invalid because it was accompanied by a protestation of innocence. The Court held, “In view of the strong factual basis for the plea demonstrated by the State and Alford’s clearly expressed desire to enter it despite his professed belief in his innocence, . . . the trial judge did not commit constitutional error in accepting it.” 400 U.S." }, { "docid": "20309526", "title": "", "text": "counsel. (See Pet. at 4; see also Def.’s Reply, Ex. 1-A; id., Ex. 1-B; id., Ex. 1-D; id., Ex. 1-E.) Therefore, it cannot be said that he was denied an opportunity to raise his claims or that D.C. courts have not ruled on the merits of those claims. Indeed, Adams is well aware that he “has presented the claims that he is presenting” to this Court “in multiple D.C.Code § 23-110 motions and [a] petition to recall [the] mandate.” (Pet. at 13.) The Superior Court addressed the merits of this argument in an order issued on April 26, 1999, remarking that Adams “was represented at trial by highly experience^] and able counsel” and concluding that Adams “ha[d] not shown that there was any material prejudice from trial counsel’s choices.” (Def.’s Reply, Ex. 1-C, at 3-5.) Adams has also attacked his conviction on the basis of trial counsel’s failure to present alibi witnesses, to cross-examine a witness to expose bias, and to impeach another witness with prior inconsistent statements. (Id., Ex. 2-A; id., Ex. 2-B.) The Superior Court is not “required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” D.C.Code § 23-110. Accordingly, it declined to address the ineffective assistance of trial counsel claim in light of Adams’s “fail[ure] to present a reason why he did not raise these issues in either his appeal or in his previous motions.” (Def.’s Reply, Ex. 2-B at 3.) Adams cannot now bring his various allegations that his trial counsel was ineffective in this federal forum. His lone justification for doing so — that his prior attempts to challenge his conviction and sentence in D.C. court on this basis have been unsuccessful — is insufficient. “It is well-established that the mere denial of relief by the local courts does not render the local remedy inadequate or ineffective.” Joyner v. O’Brien, No. 09-913, 2010 WL 199781, at *2 (D.D.C. Jan. 15, 2010) (citations omitted); see Corley v. U.S. Parole Comm’n, 709 F.Supp.2d 1, 5 (D.D.C.2009) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)); see also Morton v." }, { "docid": "18117309", "title": "", "text": "and of society, N.Y. Correction Law, McKinney’s Consol.Laws, c. 43, §§ 210, 213, in order to further some other goal, as is alleged here, it no longer acts within the prescribed scope of its duties or according to the procedures which it is by law required to follow, and it cannot expect the same measure of deference from the courts. In this case, taking plaintiffs allegations as true, we find that they have stated a claim upon which, assuming it were proved, relief could be granted under § 1983 against the Parole Board. They allege that, prior to entering into an agreement pursuant to which they entered guilty pleas and gave up their right to a jury trial, direct promises were made by the Parole Board to their attorney that, in exchange for plaintiffs’ pleas and for the return of stolen property, they would be released on parole after serving 18 months of their sentences. Following this alleged agreement, the Parole Board refused to grant plaintiffs release on parole at the promised time. Proof of such facts would establish a violation of plaintiffs’ Due Process rights. While a plea of guilty, if voluntarily and knowingly made, may not be challenged on grounds which relate to the motivation for the plea, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (desire to avoid a possible death penalty) ; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (unavailability of constitutional procedures for testing the admissibility of defendant’s pretrial statements), it is a fundamental prerequisite of the plea negotiation process that the representations made to the defendant be accurate, and that promises made to him be kept, United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244 (S.D.N.Y.1966). The present case is not one in which a defendant who has had the benefit of a plea agreement later seeks to withdraw his guilty plea, cf. Shelton v. United States, 246 F.2d 571 (5th Cir. 1957), but one in which it is alleged that the defendant has kept his part of the agreement and" }, { "docid": "4837871", "title": "", "text": "the most obvious facts. 1A Charles Alan Wright, Federal Practice & Procedure § 173 (3d ed.1999). In contrast, a guilty plea is an admission of all the elements of a formal criminal charge. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). A plea of nolo contendere is “viewed not as an express admission of guilt but as a consent by the defendant that he may be punished as if he were guilty and a prayer for leniency.” North Carolina v. Alford, 400 U.S. 25, 36 n. 8, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Although unmentioned in Rule 11, courts and lawyers sometimes refer to an 11 Alford plea.” An Alford plea is a plea of guilty in which the defendant maintains his innocence. See generally Alford, 400 U.S. at 36, 91 S.Ct. 160. See also United States v. Crowell, 374 F.3d 790, 791 (9th Cir.2004). An Alford plea differs from a nolo plea in that a defendant pleading nolo contendere takes no position on guilt or innocence, whereas a defendant entering an Alford plea takes the position that he is not guilty. It bears repeating that, as far as the text of Rule 11 is concerned, there is no such thing as an Alford plea. An Alford plea is simply shorthand for a guilty plea accompanied by a protestation of innocence. Thus, when a defendant offers what courts and lawyers describe as an Alford plea, the defendant is actually offering, in Rule 11 terms, a guilty plea. See United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir.1995) (discussing difference between Alford and nolo pleas and noting that an Alford plea is a guilty plea within the meaning of Rule 11, not a nolo plea). Rule 11 imposes a number of requirements on a district court confronted with a guilty or nolo plea. Rule 11(b)(1) requires the court to place the defendant under oath and inform him of and determine that he understands both his rights and the consequences of his plea. Rule 11(b)(2) requires the court to ensure that the plea" }, { "docid": "7502651", "title": "", "text": "approach, that is, its reliance on the state court conviction resting on the “no contest” plea, is prohibited by the reasoning of United States v. Alston, 611 F.3d 219 (4th Cir.2010), in which we held that an enhanced sentence under the Armed Career Criminal Act may not rest on a conviction based on a guilty plea tendered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), unless “the defendant’s own admissions or accepted findings of fact confirm! ] the factual basis of a valid plea.” 611 F.3d at 226. No case has been brought to our attention in which a court has applied the reasoning of Alston to a sentencing guidelines cross-reference analysis. Nevertheless, the concerns animating our Alston precedent have currency in the present context. Indeed, under North Carolina law (in contrast to some other jurisdictions), a “no contest” plea is treated precisely as an Alford plea under the circumstances here: Thus, the record is muddled as to whether defendant entered a no contest plea or a guilty plea pursuant to Alford. However, we hold that for purposes of our analysis in the instant case that there is no material difference between a no contest plea and an Alford plea. See State v. Alston, [139 N.C.App. 787] 534 S.E.2d 666, 669 (2000) (“[A]n ‘Alford plea’ constitutes a guilty plea in the same way that a plea of nolo contendere or no contest is a guilty plea.” (quotation and citation omitted)); see also Alford, 400 U.S. at 37 [91 S.Ct. 160] (stating that there is no “material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence. ...”). A defendant enters into an Alford plea when he proclaims he is innocent, but “intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Id. Implicit in a plea of no contest is the recognition that although the defendant is unwilling to expressly admit guilt, he is faced with “grim alternatives”" } ]

[ { "docid": "23647750", "title": "", "text": "fewer responsibilities. Appellant contends the transfer was intolerable nonetheless because it was “humiliating” to serve as a staff nurse after having been a supervisor for a number of years, and because she would work under the supervision of Ms. Owens, who had reported the Armstrong incident to the administration and with whom she had experienced personality conflicts in the past. However, her humiliation over losing her title and supervisory power, no matter how subjectively painful and deeply felt, does not not make her transfer to staff nurse so objectively intolerable as to “force” her resignation. E.g., Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119-20 (1st Cir. 1977) (where a social worker was relieved of his supervisory powers and title, the court held that “this sort of limited blow to one’s pride or prestige does not provide reason enough to resign ____ A more drastic reduction in the quality of working conditions is needed”); Neale v. Dillon, 534 F.Supp. 1381, 1390 (E.D.N.Y.), aff'd without opinion, 714 F.2d 116 (2d Cir. 1982) (“The court finds that if ... [appellant] thought her position intolerable it was due to her own perception that ... her transfer to the appeals bureau in a non-supervisory position ... [was] damaging to her prestige. While understandable, ... her embarrassment does not constitute a constructive discharge”). Cf. Frazer v. KFC National Management Co., 491 F.Supp. 1099, 1105 (M.D.Ga.1980), aff'd without opinion, 636 F.2d 313 (5th Cir. 1981) (observing that transfer, at same pay, from district manager overseeing forty-two stores to area manager overseeing eight “would have been to some ‘a come down’ and to others a retirement with full pay job”). Nor are the working conditions made sufficiently intolerable to amount to a constructive discharge when her relationship with Ms. Owens is considered. That an employee does not like or is not liked by his fellow employees or supervisors does not, in my opinion, make a case of constructive discharge. The evidence may well have been sufficient to show that appellant personally con sidered her working conditions intolerable, but it fails to show that a reasonable person would" } ]

[ { "docid": "3207528", "title": "", "text": "reverse with no apparent hope of any advancement at the time he left the company in February 1982. Earlier in this decision I expressed my conclusion that the evidence is sufficient to support a finding that the company’s stated reasons for not offering the Portland job to the plaintiff, and for denying him relocation benefits and promotional opportunities were a pretext for discrimination. Accordingly, there was a sufficient basis for the jury to find that a reasonable person in Mr. Real’s position would have felt compelled to resign when he did. Continental makes much of the fact that despite the plaintiff’s demotion and job offers graded substantially below the job he held prior to June 1981, Mr. Real suffered no reduction in his salary or benefits. This fact alone is not enough to defeat the jury’s finding of constructive discharge. See Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530-31 (11th Cir.1985). The defendants also cite the case of Frazer v. RFC National Management Co., 491 F.Supp. 1099 (N.D.Ga.1980), aff'd without opinion, 636 F.2d 313 (5th Cir.1981), in opposing the jury’s constructive discharge finding. In Frazer, the district court concluded that the evidence was insufficient to support a finding of constructive discharge where the plaintiff quit instead of accepting a demotion to a position of substantially reduced responsibility but in which he would have retained the same salary and benefits as in his previous position. The Frazer case is readily distinguishable from the present matter. Unlike the plaintiff in the case at bar, the plaintiff in Frazer alleged only a single instance of demotion and did not claim that he was otherwise discriminated against. In contrast, the evidence in the case at bar is sufficient to support the conclusion that the plaintiff was subjected to a continuous pattern of discriminatory treatment over a period of several months involving the deprivation of promotional opportunities, the denial of relocation benefits, and culminating in the offer of a nine-grade demotion. Moreover, unlike Mr. Real, the plaintiff in Frazer stated that he turned down one of the positions he was offered because" }, { "docid": "3207527", "title": "", "text": "of constructive discharge. After being passed over for the position of Manager of Industrial Engineering in the June 1981 consolidation, Mr. Real was demoted five grades to Supervisor of Industrial Engineering, grade E-10. When this position was eliminated in January 1982, the plaintiff was offered the Pittsburg quality control position, grade E-ll, but his request for relocation benefits was denied, and he declined the offer. When Mr. Real instead inquired about the quality control position at the company’s San Jose plant, located quite close to his home, he was informed that someone with more quality control experience was needed. Although there was evidence that the plaintiff had been recommended for the San Jose job by the plant’s manager and was well-qualified for the position, the job was offered to an individual of approximately the same age as the plaintiff. Finally, Continental offered Mr. Real the buyer’s job for the San Jose plant, a nine-grade demotion from the position he had occupied prior to the June 1981 consolidation. Mr. Real’s career at Continental was moving in reverse with no apparent hope of any advancement at the time he left the company in February 1982. Earlier in this decision I expressed my conclusion that the evidence is sufficient to support a finding that the company’s stated reasons for not offering the Portland job to the plaintiff, and for denying him relocation benefits and promotional opportunities were a pretext for discrimination. Accordingly, there was a sufficient basis for the jury to find that a reasonable person in Mr. Real’s position would have felt compelled to resign when he did. Continental makes much of the fact that despite the plaintiff’s demotion and job offers graded substantially below the job he held prior to June 1981, Mr. Real suffered no reduction in his salary or benefits. This fact alone is not enough to defeat the jury’s finding of constructive discharge. See Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1530-31 (11th Cir.1985). The defendants also cite the case of Frazer v. RFC National Management Co., 491 F.Supp. 1099 (N.D.Ga.1980), aff'd without opinion, 636" }, { "docid": "3207529", "title": "", "text": "F.2d 313 (5th Cir.1981), in opposing the jury’s constructive discharge finding. In Frazer, the district court concluded that the evidence was insufficient to support a finding of constructive discharge where the plaintiff quit instead of accepting a demotion to a position of substantially reduced responsibility but in which he would have retained the same salary and benefits as in his previous position. The Frazer case is readily distinguishable from the present matter. Unlike the plaintiff in the case at bar, the plaintiff in Frazer alleged only a single instance of demotion and did not claim that he was otherwise discriminated against. In contrast, the evidence in the case at bar is sufficient to support the conclusion that the plaintiff was subjected to a continuous pattern of discriminatory treatment over a period of several months involving the deprivation of promotional opportunities, the denial of relocation benefits, and culminating in the offer of a nine-grade demotion. Moreover, unlike Mr. Real, the plaintiff in Frazer stated that he turned down one of the positions he was offered because the job would have involved extensive travel which he did not like. D. Willful Discrimination The defendants also argue that the evidence is insufficient to support the jury’s finding that Continental’s age discrimination against Mr. Real was willful. A violation of the ADEA is willful if the employer knew or acted with reckless disregard for whether its conduct violated the Act. Trans World Air Lines, Inc. v. Thurston, — U.S.-, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985). The plaintiff need not prove that the defendant intended to violate the ADEA. “In a discriminatory treatment case, such as this, an employer’s action, if taken because of&a impermissible factor such as age cannot be the result of negligence, mistake, or other innocent reason.” Goodman v. Heublein, Inc., 645 F.2d 127, 131 n. 6 (2d Cir.1981) (emphasis in original). Willfulness is not established, however, by showing that, the employer “simply knew of the potential applicability of the ADEA.” Thurston, supra, 105 S.Ct. at 625. The defendants contend first that willfulness only is established where the evidence shows" }, { "docid": "3207521", "title": "", "text": "persons already in the Portland office. Thus, considered in light of the evidence suggesting Mr. Real’s superior qualifications for the Portland job, the jury reasonably could have concluded that this particular reason was in fact pretextual. The defendants finally claim that they did not offer the Portland job to Mr. Real because they did not believe that he was willing to relocate from the Bay Area. The defendants asserted that they based this presumption on the plaintiff’s 1978 and 1980 personnel, or Conopath, forms. On both forms the plaintiff indicated that he did not want to relocate. While the authenticity of the 1978 form is not in dispute, the plaintiff testified that he did not sign or date the 1980 form, suggesting thereby that the company may have falsified the document. The plaintiff’s testimony created a factual dispute within the province of the jury and not the court to resolve. Moreover, Mr. Madrid testified that despite the fact that he had filled out a company form indicating his unwillingness to relocate, he was moved several times by Continental. Jack L. Crawford, Plains Division Manager of Human Resources prior to the 1981 consolidation of Continental’s divisions, testified by way of deposition that William Kissel, Manager of Industrial Engineering for the Plains Division, was interviewed and considered for positions with the company on the east coast even though he had told Mr. Crawford that he did not want to relocate. Mr. Crawford also stated that displaced employees, with rare exception, always were interviewed for a position for which they were under consideration. Mr. Real, however, was not interviewed for the Portland job. In sum, there was substantial evidence for the jury to conclude that Continental’s stated reasons for choosing Mr. Zinter rather than Mr. Real for the Portland job were pretex- tual, thus supporting a finding of age discrimination. In addition, there is ample evidence from which the jury reasonably could find that Continental’s stated reasons for denying the plaintiff promotional opportunities and relocation benefits in its subsequent employment decisions involving the plaintiff were a pretext for age discrimination. The company’s assertions" }, { "docid": "21123837", "title": "", "text": "employee to resign. See, e.g., Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir.1986). For the transfer proposed by DFI to be deemed a constructive discharge, ‘“the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Id. (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). An employee may not, therefore, be unreasonably sensitive to a change in job responsibilities. It is undisputed that Serrano, when offered the position of “retail manager,” was promised the same salary and benefits she enjoyed as comptroller. Salary considerations are important in determining whether a job transfer can support a claim of constructive dismissal. See Greenberg, 48 F.3d at 27 (noting no change in salary in course of finding no constructive dismissal) (collecting cases); Stephens v. C.I.T. Group, 955 F.2d 1023, 1027 (5th Cir.1992) (noting reduction of salary in course of finding constructive dismissal); Pena v. Brattleboro Retreat, 702 F.2d 322 (2d Cir.1983) (finding no constructive discharge where job responsibilities were changed without any reduction in pay); cf. Nunez-Soto v. Alvarado, 918 F.2d 1029, 1030-31 (1st Cir.1990) (in political demotion case, demotion without salary cut found insufficient for constructive dismissal). Although important, the fact that salary and benefits have not been decreased has never been held to be a conclusive factor; courts applying the objective standard in ADEA constructive dismissal cases consider a variety of often case-specific factors. See Greenberg, 48 F.3d at 27-29 (discussing salary in addition to assessing new work conditions); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-62 (2d Cir.1993) (noting no decrease in salary, but focusing mainly on working conditions); see also Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994) (“[A]n employer does not insulate itself from liability for discrimination simply by offering a transfer at the same salary and benefits.”). Common sense suggests that a job transfer without a reduction in salary and benefits may, under certain circumstances, be unacceptable to a reasonable person who" }, { "docid": "3207511", "title": "", "text": "was selected over the plaintiff, who was then 57 years old. Following the 1981 consolidation, Mr. Real was demoted five grades to the position of Supervisor of Industrial Engineering in Continental’s San Mateo office. His salary and benefits remained the same as they had been in his previous grade E-15 position. As part of a subsequent company reorganization in early 1982, Mr. Real’s position as Supervisor of Industrial Engineering was eliminated. The plaintiff was offered the job of Supervisor of Quality Control (grade E-ll) at Continental’s Pittsburg, California, plant, but he was not granted relocation benefits. Mr. Real declined the offer, which subsequently was accepted by H.L. Kaeser, then 59 years of age. Continental denied Mr. Real’s request that he be given the job of Supervisor of Quality Control at the company’s San Jose, California, plant. That position went to E.J. Leek, then aged 57. Finally, in February 1982, Continental offered Mr. Real the position of Plant Buyer for the San Jose Plant, a grade E-6 job. In that position, Mr. Real would have retained his previous salary and benefits. However, in late February 1982, Mr. Real stopped working for Continental, although he received his full salary through June 1982. In support of their motion for judgment notwithstanding the verdict or, in the alternative, for remittitur or a new trial on the issue of back pay damages, the defendants contend that (1) there is insufficient evidence to support the jury’s finding that the defendants discriminated against the plaintiff because of his age in its decision to award the Portland job to Paul Zinter or in its subsequent employment decisions concerning the plaintiff; (2) there is insufficient evidence to support the jury’s finding that the defendants constructively discharged the plaintiff; (3) there is insufficient evidence to support the jury’s finding of willful discrimination; and (4) there is no evidence to support the jury’s award of back pay damages to the plaintiff. The plaintiff supports his motion for judgment notwithstanding the verdict by contending that there is not sufficient evidence to support the jury’s findings that (1) Continental’s 1983 offer to reinstate" }, { "docid": "23017524", "title": "", "text": "under our deferential standard of review to show that Poland suffered a constructive discharge, the district court’s finding is not undermined by the evidence that the Customs Service regularly transferred its employees to different locations. Even if Poland’s move across the country may not have been intolerable in and of itself, the move culminated in a drastic demotion in duties that the district court found objectively intolerable under the circumstances. Likewise, in light of the demotion and the years of discriminatory and retaliatory treatment, the district court’s finding is not undermined by the fact that Poland’s pay remained the same. See Buckley v. Hosp. Corp. of America, Inc., 758 F.2d 1525, 1530-31 (11th Cir.1985) (rejecting defendant’s contention that plaintiff was not constructively discharged because she was offered another position at the same pay, because plaintiff “testified she found [the new position] ‘humiliating’ after her years of service in su pervisory positions”); see also Ramos v. Davis & Geek, Inc., 167 F.3d 727, 731 (1st Cir.1999) (“[T]he fact that salary and benefits have not been decreased has never been held to be a conclusive factor [for a constructive discharge finding] .... ”); Real v. Cont’l Group, Inc., 627 F.Supp. 434, 443 (N.D.Cal.1986) (“Continental makes much of the fact that despite the plaintiffs demotion and job offers graded substantially below the job he held prior to June 1981, Mr. Real suffered no reduction in his salary or benefits. This fact alone is not enough to defeat the jury’s finding of constructive discharge.”). Nor is the majority’s reversal of the district court’s factual finding justified simply because Poland worked for about five months after his demotion before resigning. We have never held that continuing to work for a period of months following an adverse employment decision precludes a constructive discharge finding. In the decisions cited by the majority, we merely affirmed findings that there was no constructive discharge; we did not suggest that the trier of fact could not have found to the contrary. See Manatt v. Bank of America, 339 F.3d 792, 804 (9th Cir.2003); Montero v. AGCO Corp., 192 F.3d 856," }, { "docid": "23509136", "title": "", "text": "(when plaintiff did not identify any cognizable and com-pensable injury caused by the allegedly discriminatory act, he could not recover). When, as here, a plaintiff resigned, he may satisfy the injury element by proving constructive discharge. See Faruki v. Parsons S.I.P., Inc., 123 F.3d 315, 319 (5th Cir.1997). Because Price was transferred to another position and then resigned, a constructive discharge analysis is appropriate for determining whether Price suffered an adverse employment action. Price did not request a constructive discharge jury instruction and Price did not produce evidence sufficient to support an implied finding of constructive discharge. “To prove constructive discharge, a plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign.” Id. “Stated more simply, [the plaintiffs] resignation must have been reasonable under all the circumstances. Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not.” Barrow v. New Orleans S.S. Ass’n., 10 F.3d 292, 297 (5th Cir.1994). Price did not produce evidence that his transfer from production foreman to HES coordinator created conditions so intolerable that a reasonable employee would feel compelled to resign. Price testified that the HES job was to be at the same salary. Although Price asserts that the HES job was a demotion; there was no evidence presented sufficient for a jury to reach this conclusion. Cf. Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir.1999) (transfer may be a demotion if the new position proves objectively worse). The HES job was not menial or degrading. Hough, Price’s co-plaintiff and a former HES coordinator, provided testimony suggesting that the responsibilities of an HES coordinator, though" }, { "docid": "3207525", "title": "", "text": "were listed by their age and length of service with reference to two Continental job openings. The comment “almost zero youth” accompanied this portion of the slide presentation. Finally, Mr. Morris testified that Mr. Orheim told him in early 1983, after Mr. Real had filed his discrimination charge with the United States Equal Employment Opportunity Commission (EEOC): “Look, T.A., the age discrimination law is a weak one. By the time when Emil files his protests we will have several months to answer this thing and it will be back and forth and in time, it will be forgotten.” Although not ultimately responsible for hiring decisions, Mr. Orheim testified that he was consulted in the decision whether to offer the Portland job to the plaintiff in June 1981. Mr. Orheim denied making the statement recalled by Mr. Morris. The court, however, will not impinge on the jury’s function to assess the credibility of the witnesses. The slide presentation and the Orheim comment are impressive evidence to support a finding of age discrimination, and when considered in light of the entire record in the case, these two evidentiary items strongly support the jury’s finding of age discrimination. In sum, there was very substantial evidence to support the jury’s finding that age was a determining factor either in Continental’s decision to award the Portland job to Mr. Zinter rather than to the plaintiff, or in its subsequent employment decisions concerning the plaintiff. C. Constructive Discharge The defendants next contend that the evidence was insufficient to support the jury’s finding that Mr. Real was constructively discharged by Continental because of his age. To establish constructive discharge, the plaintiff must prove that the employer deliberately made his working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign. Nolan v. Cleland, 686 F.2d 806, 813-14 (9th Cir.1982). In reviewing constructive discharge claims, courts look for “aggravating factors,” as, for example, a continuous pattern of discriminatory treatment. Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir.1984). The evidence in the present case is sufficient to support the jury’s finding" }, { "docid": "11153447", "title": "", "text": "demotion and loss of employee status was a direct result of IDS’s alleged pattern or practice of age discrimination. The court further rejects IDS’s claim that the eleven plaintiffs cannot prove constructive discharge as a matter of law, finding that plaintiffs allege sufficient facts to survive a motion for summary judgment. ‘A constructive discharge exists when an employer deliberately renders the employee’s working conditions intolerable and thus forces him to quit his job.’ To constitute a constructive discharge, the employer’s actions must have been taken with the intention of forcing the employee to quit____ [However,] a constructive discharge arises only when a reasonable person would find conditions intolerable. Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981) (quotation and citation omitted). Applying this standard, courts have found the following facts sufficient to survive a motion for summary judgment regarding constructive discharge: an employer demoting an employee, promoting a younger person in his place, and asking the employee about his retirement plans three times in seven months, see Calhoun v. Acme Cleveland Cory., 798 F.2d 559, 562-63 (1st Cir.1986) (upholding jury verdict for employee); an employer forcing an employee to choose between resignation or a transfer to a lower paying job, see Cockrell v. Boise Cascade Cory., 781 F.2d 173, 177-78 (10th Cir.1986) (reversing summary judgment for employer); an employer demoting an employee without warning or reprimand, see Williams v. Caterpillar Tractor Co., 770 F.2d 47, 49-50 (6th Cir.1985); an employer making several inquiries about retirement plans and demoting an employee to another position, but with same benefits and pay, see Buckley v. Hospital Cory., 758 F.2d 1525, 1530-31 (11th Cir.1985) (reversing directed verdict for employer). On facts similar to the present case, the First Circuit held that: an ADEA plaintiff claiming that he was, in effect, fired by being forced into retirement must show that his employer’s “offer” [of early retirement] was but an empty sham masking its decision to fire the plaintiff because of his age. The question ... thus becomes whether this plaintiff was placed ... in the impossible position of having to choose between discharge" }, { "docid": "3207510", "title": "", "text": "dispute will be held in abeyance pending the plaintiff’s acceptance of the remit-titur or, if refused, the resolution of the partial new trial. BACKGROUND Mr. Real, born January 27, 1924, went to work for Continental in 1950. From 1950 until 1975, he held various engineering positions with the company, receiving several promotions and regular merit pay increases in recognition of his job performance. In 1975, he was promoted to Manager of Industrial Engineering for Continental’s Pacific Division, a grade E-15 position. In 1980 and 1981, as part of a company reorganization effort, Continental consolidated several divisions, including the Pacific Division, headquartered in San Mateo, California, where the plaintiff was employed, and the Northwest Division, based in Portland, Oregon. The merger of these two divisions in June 1981 formed the Western Division, with headquarters in Portland. During the 1981 consolidation, the job of Manager of Industrial Engineering for the newly-formed Western Division was given to Paul Zinter, who was then 46 years old and the Manager of Industrial Engineering for the old Northwest Division. Mr. Zint-ner was selected over the plaintiff, who was then 57 years old. Following the 1981 consolidation, Mr. Real was demoted five grades to the position of Supervisor of Industrial Engineering in Continental’s San Mateo office. His salary and benefits remained the same as they had been in his previous grade E-15 position. As part of a subsequent company reorganization in early 1982, Mr. Real’s position as Supervisor of Industrial Engineering was eliminated. The plaintiff was offered the job of Supervisor of Quality Control (grade E-ll) at Continental’s Pittsburg, California, plant, but he was not granted relocation benefits. Mr. Real declined the offer, which subsequently was accepted by H.L. Kaeser, then 59 years of age. Continental denied Mr. Real’s request that he be given the job of Supervisor of Quality Control at the company’s San Jose, California, plant. That position went to E.J. Leek, then aged 57. Finally, in February 1982, Continental offered Mr. Real the position of Plant Buyer for the San Jose Plant, a grade E-6 job. In that position, Mr. Real would have retained" }, { "docid": "5749553", "title": "", "text": "his experience level— were pretextual. Brown testified that Foot Locker offered to promote him to a 1.4 to 1.6 million dollar ethnic store, but refused to promote him to either a 900,000 dollar or a 300,000 to 500,000 dollar non-ethnic store. Another Brown witness corroborated this testimony. Foot Locker presented evidence that it ’never offered him management of the 1.4 million dollar store, directly contradicting Brown’s testimony. Although much of the evidence is conflicting, it is legally sufficient for a jury to find intentional discrimination. The jury, exercising its function of determining facts and weighing credibility, was free to believe Brown’s testimony and evidence over the evidence offered by Foot Locker. Brown introduced evidence that white managers with similar evaluations were promoted to non-ethnic stores, and evidence suggesting that black managers were generally not chosen to manage non-ethnic stores. Brown testified that despite requesting positions at non-ethnic stores on multiple occasions, he was denied the opportunity to manage a non-ethnic store, although he was apparently promotable to ethnic stores. Based on that, and similar evidence, the jury could have concluded that Foot Locker’s claim that Brown was not qualified for the higher volume store was pretextual, and that Foot Locker intentionally discriminated against Brown by not promoting him to a non-ethnic store. B Foot Locker also appeals the district court’s denial of Foot Locker’s mo tion for judgment on constructive discharge. As we pointed out earlier, Brown was not discharged. He resigned. A resignation is actionable under Title VII, allowing the plaintiff to seek compensatory damages for events after the resignation, only if the resignation qualifies as a constructive discharge. To prove a constructive discharge, a “plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign.” Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir.1997). In determining whether a reasonable employee would feel compelled to resign, we have considered the relevancy of the following events: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6)" }, { "docid": "20937063", "title": "", "text": "stated that managing the lumberyard was not a demotion under the company’s reorganization plan. The plaintiff testified that nothing was said about salary, nor had he been informed of the company’s elevated role for yard managers. The Cockrell court held that the plaintiff adduced sufficient evidence of intolerable working conditions to warrant submitting the issue of constructive discharge to the jury. Based upon the facts recited above and all the fair inferences therefrom, a jury could find that Drake was constructively discharged. Drake told Wallace at the November 22, 1982 meeting that he did not want to relocate. Yet, like the plaintiff in Cockrell, Drake was given only the choice of relocating and accepting a demotion or retiring with SIPP benefits. The facts surrounding Drake’s retirement are even more compelling than those involved in Cockrell because Mountain Bell admits Drake’s new job was a demotion. Drake was also pressured to make a decision quickly, without time for discussing his options with others. Drake may have concluded that the job in Santa Fe would be intolerable, especially since his supervisor, Wallace, told him that he would be a fool not to accept retirement and the SIPP benefits. The defendant cites two Seventh Circuit Court of Appeals decisions involving early retirement in support of its contention that Drake was not constructively discharged. In Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.1987), the court affirmed the trial court’s decision granting the defendant’s motion for summary judgment on the ground that the plaintiffs had failed to establish that they were constructively discharged. The plaintiffs asserted that they were constructively discharged because their decision to take early retirement was involuntary in light of management’s real and implied threats of unpleasant consequences if the plaintiffs did not increase their sales. The court concluded that pressure to sell more ads did not amount to making the plaintiffs’ jobs intolerable: “Selling is a risky profession, and it does not make a salesman’s job unbearable to remind him that he must produce and that there are penalties for failure.” Id. at 830. The court further explained that" }, { "docid": "9947871", "title": "", "text": "the muniments and responsibilities of Plaintiff’s position as District Manager, compared to the fall-back positions he was offered: Opportunity for advancement Defendant does not know what is meant by the term “advancement” since it is not defined and can be meant to include a variety of elements, including career development, promotion, salary increase, grade change, job enlargement, etc. However, had the Plaintiff accepted the alternative positions offered him, the possibility existed for him to return to his former position of a District Manager and/or to advance to other positions within the system depending upon such factors as performance, future reorganization, realignments, restructuring of markets, or other business changes or developments. Under all of the circumstances disclosed by all the undisputed evidence, any reasonable person would have accepted the area manager job and enjoyed less responsibility while receiving the same pay and benefits he had been receiving or would have accepted either the other equally appealing job offer or franchise opportunity. While he may not have liked the offers, no reasonable person would have felt compelled to resign as the plaintiff did. The plaintiff was not constructively discharged; he departed voluntarily and of his own accord. While the plaintiff has not claimed that he was “otherwise discriminated against,” the court has kept that possibility in mind in considering this motion and has found no evidence of such discrimination. The undisputed facts having shown that the plaintiff was neither actually nor constructively discharged by his defendant employer, the plaintiff as a matter of law has no claim against the defendant under the Age Discrimination in Employment Act and the defendant is entitled to judgment. Defendant’s motion for summary judgment is GRANTED. SO ORDERED. EXHIBIT A KFC National Management Company 3300 Northeast Expressway P.O. Box 100093, Atlanta, Georgia 30348 (404) 451 8781 October 21, 1977 Mr. William A. Frazer 3137 West Britt David Road Columbus, GA 31904 Dear Bill: This is beginning to sound repetitious of our past conversations concerning the change in your position with the Company, but I did not want to close the book on this without giving you every" }, { "docid": "23017525", "title": "", "text": "has never been held to be a conclusive factor [for a constructive discharge finding] .... ”); Real v. Cont’l Group, Inc., 627 F.Supp. 434, 443 (N.D.Cal.1986) (“Continental makes much of the fact that despite the plaintiffs demotion and job offers graded substantially below the job he held prior to June 1981, Mr. Real suffered no reduction in his salary or benefits. This fact alone is not enough to defeat the jury’s finding of constructive discharge.”). Nor is the majority’s reversal of the district court’s factual finding justified simply because Poland worked for about five months after his demotion before resigning. We have never held that continuing to work for a period of months following an adverse employment decision precludes a constructive discharge finding. In the decisions cited by the majority, we merely affirmed findings that there was no constructive discharge; we did not suggest that the trier of fact could not have found to the contrary. See Manatt v. Bank of America, 339 F.3d 792, 804 (9th Cir.2003); Montero v. AGCO Corp., 192 F.3d 856, 861 (9th Cir.1999); see also Smith v. Bath Iron Works Corp., 943 F.2d 164, 167 (1st Cir.1991). Also, in each of those cases, the plaintiffs conceded that the alleged discriminatory treatment had stopped entirely months or years before they resigned. Poland, however, was still subject to retaliatory treatment when he resigned, as the Customs Service kept him at a nonessential, nonsupervisory, career-ending job, moving papers from one side of his desk to the other. Moreover, we recently held that a similar, three-month delay in resigning did not “preclude[] a conclusion that [the plaintiff] was constructively discharged.” Wallace, 479 F.3d at 627. As we explained: Although the dissent would conclude otherwise, the jury could have viewed [the plaintiffs] efforts to stay on the job despite the intolerable conditions as evidence that he indeed had “the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.2000) (internal quotation marks omitted)." }, { "docid": "9947868", "title": "", "text": "v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980). As such the employee does not have to prove that it was the employer’s purpose to force the employee to resign. The undisputed facts first of all do not show that the plaintiff was discharged. As he himself said, he was offered the next lower job without loss of pay or benefits and also offered another job and the opportunity to go into business for himself as the owner of the Thomasville franchise. Given ample opportunity to consider each offer, he accepted none and departed the company’s employment. His departure thus resulted not from actual discharge but from his failure to accept either a lesser job without loss of pay or benefits or the opportunity to become a franchisee. Was Mr. Frazer constructively discharged? In considering this possibility it is important to remember that the Age Discrimination in Employment Act is not intended to prevent employers from changing the job responsibilities of their 40 to 65 year old employees. Neither is the Act intended to give 40 to 65 year old employees the right to walk out and sue their employer because they dislike their changed job responsibilities. If the employee walks out, he can complain of discharge only if the offered or altered “ ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ Alice a Rosada v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977).” Bourque, supra, at 119. Mr. Frazer was in a management position with this company. Without loss of pay or benefits he was offered lesser management duties as an area manager of some eight stores in his own district and told that he could choose the area and would not have to move his residence. This, of course, would have been to some “a come down” and to others a retirement with full pay job. If looked upon as “a come down” and a daily embarrassment because of working at a lower level among those formerly supervised while at" }, { "docid": "3207522", "title": "", "text": "times by Continental. Jack L. Crawford, Plains Division Manager of Human Resources prior to the 1981 consolidation of Continental’s divisions, testified by way of deposition that William Kissel, Manager of Industrial Engineering for the Plains Division, was interviewed and considered for positions with the company on the east coast even though he had told Mr. Crawford that he did not want to relocate. Mr. Crawford also stated that displaced employees, with rare exception, always were interviewed for a position for which they were under consideration. Mr. Real, however, was not interviewed for the Portland job. In sum, there was substantial evidence for the jury to conclude that Continental’s stated reasons for choosing Mr. Zinter rather than Mr. Real for the Portland job were pretex- tual, thus supporting a finding of age discrimination. In addition, there is ample evidence from which the jury reasonably could find that Continental’s stated reasons for denying the plaintiff promotional opportunities and relocation benefits in its subsequent employment decisions involving the plaintiff were a pretext for age discrimination. The company’s assertions that it did not consider the plaintiff for promotional opportunities because of his unwillingness to relocate were not impressive and quite reasonably could have been rejected by the jury. Not only did the plaintiff communicate his disappointment at not receiving the Portland job to Robert Lazarus in June 1981, but he also testified that during the summer of 1981 he told Robert Wellise that he was willing to listen to any position that the company offered him. There was, therefore, sufficient evidence from which the jury could reasonably infer that the company knew, at least by the summer of 1981, that the plaintiff was willing to relocate. When following Continental’s early 1982 reorganization the company offered Mr. Real the position of Manager of Quality Control at the Pittsburg, California, plant, the plaintiff asked for relocation benefits. Although the Pittsburg plant is approximately 70 miles from the plaintiff’s San Mateo home, the company denied his request. Continental asserted that it denied the plaintiff’s request because it did not have a policy to award relocation benefits in" }, { "docid": "9947867", "title": "", "text": "does not even circumstantially show that the offers made to him and refused by him resulted from a plan to get rid of persons between forty and sixty-five years of age. Was Mr. Frazer discharged? The discharge that is proscribed by the Act is either an actual or constructive discharge. An actual discharge occurs when an employer fires, dismisses, releases, ousts, lets go, terminates, sacks, gets rid of, gives the gate to, cans, axes, bounces, or gives walking papers to an employee resulting in the severance of the entire employment relationship. On the other hand a constructive discharge occurs when the employer instead of severing the entire relationship with the employee, “deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. . . Young v. Southwestern Savings and Loan Assn., 509 F.2d 140, 144 (5th Cir. 1975). In determining whether or not a constructive discharge occurred, the court determines whether or not a reasonable person in the employee’s position and circumstances would have felt compelled to resign. Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980). As such the employee does not have to prove that it was the employer’s purpose to force the employee to resign. The undisputed facts first of all do not show that the plaintiff was discharged. As he himself said, he was offered the next lower job without loss of pay or benefits and also offered another job and the opportunity to go into business for himself as the owner of the Thomasville franchise. Given ample opportunity to consider each offer, he accepted none and departed the company’s employment. His departure thus resulted not from actual discharge but from his failure to accept either a lesser job without loss of pay or benefits or the opportunity to become a franchisee. Was Mr. Frazer constructively discharged? In considering this possibility it is important to remember that the Age Discrimination in Employment Act is not intended to prevent employers from changing the job responsibilities of their 40 to 65 year old employees. Neither is the Act intended" }, { "docid": "20937062", "title": "", "text": "choice but to retire early given the alternative of a demotion and transfer of job location. In Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir.1982), the Tenth Circuit Court of Appeals stated that a “constructive discharge occurs when an employer deliberately makes or allows the employee’s working conditions to become so intolerable that the employee has no other choice but to quit.” The court explained in Cockrell v. Boise Cascade Corp., 781 F.2d at 177 that “The test is whether a reasonable man would view the working conditions as intolerable and would feel compelled to resign.” In Cockrell, the court considered constructive discharge in the context of a perceived demotion or reassignment. The plaintiff, a regional manager of several lumberyards, was asked to accept reassignment to manage one lumberyard. When he told management that he was not interested in running one lumberyard again, the plaintiff’s supervisor gave the plaintiff only the choice of running the lumberyard or resigning. The supervisor testified that the company did not intend to reduce plaintiff’s salary and stated that managing the lumberyard was not a demotion under the company’s reorganization plan. The plaintiff testified that nothing was said about salary, nor had he been informed of the company’s elevated role for yard managers. The Cockrell court held that the plaintiff adduced sufficient evidence of intolerable working conditions to warrant submitting the issue of constructive discharge to the jury. Based upon the facts recited above and all the fair inferences therefrom, a jury could find that Drake was constructively discharged. Drake told Wallace at the November 22, 1982 meeting that he did not want to relocate. Yet, like the plaintiff in Cockrell, Drake was given only the choice of relocating and accepting a demotion or retiring with SIPP benefits. The facts surrounding Drake’s retirement are even more compelling than those involved in Cockrell because Mountain Bell admits Drake’s new job was a demotion. Drake was also pressured to make a decision quickly, without time for discussing his options with others. Drake may have concluded that the job in Santa Fe would be intolerable," }, { "docid": "3207526", "title": "", "text": "light of the entire record in the case, these two evidentiary items strongly support the jury’s finding of age discrimination. In sum, there was very substantial evidence to support the jury’s finding that age was a determining factor either in Continental’s decision to award the Portland job to Mr. Zinter rather than to the plaintiff, or in its subsequent employment decisions concerning the plaintiff. C. Constructive Discharge The defendants next contend that the evidence was insufficient to support the jury’s finding that Mr. Real was constructively discharged by Continental because of his age. To establish constructive discharge, the plaintiff must prove that the employer deliberately made his working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign. Nolan v. Cleland, 686 F.2d 806, 813-14 (9th Cir.1982). In reviewing constructive discharge claims, courts look for “aggravating factors,” as, for example, a continuous pattern of discriminatory treatment. Satterwhite v. Smith, 744 F.2d 1380, 1382 (9th Cir.1984). The evidence in the present case is sufficient to support the jury’s finding of constructive discharge. After being passed over for the position of Manager of Industrial Engineering in the June 1981 consolidation, Mr. Real was demoted five grades to Supervisor of Industrial Engineering, grade E-10. When this position was eliminated in January 1982, the plaintiff was offered the Pittsburg quality control position, grade E-ll, but his request for relocation benefits was denied, and he declined the offer. When Mr. Real instead inquired about the quality control position at the company’s San Jose plant, located quite close to his home, he was informed that someone with more quality control experience was needed. Although there was evidence that the plaintiff had been recommended for the San Jose job by the plant’s manager and was well-qualified for the position, the job was offered to an individual of approximately the same age as the plaintiff. Finally, Continental offered Mr. Real the buyer’s job for the San Jose plant, a nine-grade demotion from the position he had occupied prior to the June 1981 consolidation. Mr. Real’s career at Continental was moving in" } ]

[ { "docid": "12550971", "title": "", "text": "discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (1) for a tax or a customs duty— (C) with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax ... 11 U.S.C. § 523(a)(1)(C). In the adversary proceeding below, the IRS contended that Mr. Langlois willfully attempted to defeat or evade his taxes for the years in question, and as a result, section 523(a)(1)(C) preserved his underlying tax liability. In order to establish that a debt is non-dischargeable in bankruptcy, the creditor (here, the IRS) bears the burden of proving by a preponderance of the evidence that the claim should be exempted from the discharge. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). Because the IRS relied on section 523(a)(1)(C), and because the IRS did not claim that Mr. Langlois acted fraudulently, the IRS had the burden of demonstrating that Mr. Langlois willfully attempted to evade or defeat his tax obligations. A debtor’s willfulness is a question of fact. Judge' Mahoney found that Mr. Langlois willfully attempted to evade his income taxes. Before Judge Mahoney and now on appeal, Mr. Langlois urges the Court to adopt the definition of “willfulness” enunciated in Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). In Cheek, the Supreme Court held that, in a criminal tax prosecution, the Government must prove that the defendant knew of the duty to pay taxes and that he “voluntarily and intentionally violated that duty” in order to prove willfulness. Cheek, 498 U.S. at 201, 111 S.Ct. at 610, 112 L.Ed.2d at 629. If a defendant persuades the jury that he truly believed he had no duty to pay taxes, even if that belief were objectively unreasonable, then the defendant would be entitled to an acquittal. In other words, if the criminal defendant subjectively, though unreasonably, believed that he had no duty to pay taxes, then he did not commit the offense of criminal tax evasion. Mr. Lan-glois urges the" } ]

[ { "docid": "2302330", "title": "", "text": "pays other creditors with reckless disregard for whether the withholding taxes have been paid. United States v. Vespe, 868 F.2d 1328, 1335 (3d Cir.1989). The Third Circuit Court of Appeals stated that the “reckless disregard” standard is satisfied “if the taxpayer (1) clearly ought to have known that (2) there was a grave risk that withholding taxes were not being paid and if (3) he was in a position to find out for certain very easily.” Vespe, 868 F.2d at 1335 (quoting Wright v. United States, 809 F.2d 425, 427 (7th Cir.1987)). After careful consideration, we are persuaded that the interpretation of willful adopted by the Third Circuit Court of Appeals in Quattrone and Vespe in the context of § 6672 is the appropriate standard to apply in the instant matter. The proceeding before the Court is not a criminal matter requiring the application of the more restrictive criminal standard but is similar to a proceeding under § 6672. Under § 523(a)(1)(C), therefore, a debtor will be considered to have willfully attempted to evade a tax if he acted voluntarily, consciously or intentionally or with reckless disregard for whether the tax has been paid. With respect to § 523(a)(1)(C), a debtor acts with reckless disregard if he knew or should have known that the tax was due and did not pay the tax. Since direct proof of a debtor’s willful attempt to evade taxes may be difficult to establish, “circumstantial evidence and reasonable inferences” drawn therefrom may be used to establish the debtor’s willfulness. Graham, 108 B.R. at 501. The existence of some of the badges of fraud may also indicate the debtor’s willfulness under § 523(a)(1)(C). The concealment of assets is one such badge that has been found to evidence a willful evasion or defeat of taxes under § 523(a)(1)(C). Lewis v. Internal Revenue Service (In re Lewis), 151 B.R. 140, 146 (Bankr.W.D.Tenn.1992) (citing Sumpter, 136 B.R. at 701); In re Jones, 116 B.R. 810, 814 (Bankr.D.Kan.1990). Here, the IRS argues that it sustained its burden under the first prong of § 523(a)(1)(C), i.e., filing fraudulent return, by showing" }, { "docid": "21274375", "title": "", "text": "collection of taxes through either acts of omission, such as failure to file returns and failure to pay taxes, or affirmative acts of evasion, such as placing assets in the name of others. See In re Gardner, 360 F.3d at 557—58; Toti v. United States (In re Toti), 24 F.3d 806, 809 (6th Cir.1994); In re Myers, 216 B.R. at 404-05. The debtor’s failure to pay taxes is not in and of itself sufficient to satisfy the IRS’s burden of proof, but it is a relevant consideration. In re Myers, 216 B.R. at 405. When nonpayment of taxes is combined with a pattern of failing to file returns or where the debtor otherwise attempts to conceal assets from the IRS, the totality of those circumstances can support a finding that the debtor is not entitled to a discharge. See In re Birkenstock, 87 F.3d 947, 951-52 (7th Cir.1996). As for the mental state requirement, the IRS must show that the debtor’s attempt to avoid his tax liability was willful. Because there is rarely direct proof of a debtor’s intent, intent may be proven by circumstantial evidence. See, e.g., In re Dalton, 77 F.3d at 1303-04; In re May, 247 B.R. at 793; Teeslink v. United States (In re Teeslink), 165 B.R. 708, 716 (Bankr.S.D.Ga.1994). For purposes of § 523(a)(1)(C), the Sixth Circuit “equates ‘willful’ with voluntary, conscious, and intentional ....” In re Toti, 24 F.3d at 809. Thus, “[t]he mental state requirement is proven when the debtor: ‘(1) had a duty to pay taxes; (2) knew he had such a duty; and (3) voluntarily and intentionally violated that duty[.]’ ” In re Gardner, 360 F.3d at 558 (quoting United States v. Fretz (In re Fretz), 244 F.3d 1323, 1330 (11th Cir. 2001)). “This willfulness requirement prevents the application of the exception to debtors who make inadvertent mistakes, reserving nondischargeability for those whose efforts to evade tax liability are knowing and deliberate.” In re Birkenstock, 87 F.3d at 952. The Conduct Element The IRS proved the conduct element based on the debtor’s acts of filing his tax returns late, failing to" }, { "docid": "21938014", "title": "", "text": "(8th Cir. BAP 2000), aff'd, 2 Fed.Appx. 681 (8th Cir.2001). IDR argues that both grounds for nondischargeability under § 523(a)(1)(C) apply to Fliss’s tax liability. It contends that she filed fraudulent returns for each of the three tax years at issue and that she willfully attempted to evade or defeat the tax. The two parts of § 523(a)(1)(C) are independent provisions requiring different elements, although there may be some overlap between the two when a taxpayer has filed a return. Schlesinger v. United States (In re Schlesinger), 290 B.R. 529, 537 n. 5 (Bankr.E.D.Pa.2002). Fraudulent Return The determination of whether a debtor has filed a fraudulent return involves the same analysis used in imposing a civil fraud penalty under § 6663 of the Internal Revenue Code. Id., 290 B.R. at 536; Kirk v. United States (In re Kirk), 98 B.R. 51, 55 (Bankr.M.D.Fla.1989). The elements of a fraudulent return are: (1) knowledge of the falsehood of the return; (2) an intent to evade taxes; and (3) an underpayment of the taxes. In re Schlesinger, 290 B.R. at 536; In re Kirk, 98 B.R. at 55. Because it is unlikely that the taxing authority will have direct evidence of intent to evade taxes, the court may infer such intent from the debtor’s entire course of conduct. There are several factors or “badges of fraud” that a court may consider as evidence of intent to evade taxes. In Recklitis v. Comm’r, 91 T.C. 874, 1988 WL 116976 (1988), the court provided a nonexclusive list of such factors: (1) understating income; (2) maintaining inadequate records; (3) failing to file tax returns; (4) giving implausible or inconsistent explanations of behavior; (5) concealing assets; (6) failing to cooperate with tax authorities; (7) engaging in illegal activities; (8) attempting to conceal illegal activities; (9) dealing in cash; and (10) failing to make estimated tax payments. Id. at 910, 1988 WL 116976. Other courts have listed similar factors that may tend to create an inference of fraud, including un-derreporting large amounts of income over a period of time, making transfers to family members, making transfers for inadequate" }, { "docid": "13341043", "title": "", "text": "debtor’s willful attempt to evade or defeat taxes, the United States must demonstrate that the debtor voluntarily, consciously, or intentionally attempted to evade tax. In re Greene, 207 B.R. at 24; In re Bertelt, 213 B.R. 173 (Bankr.M.D.Fla.1997). Circumstantial Evidence of Fraud. Direct proof of fraudulent intent is rarely available. For this reason, courts have traditionally relied on certain well-defined badges or indicia of fraud to presume fraudulent intent to transfer. In re Landen, 1997 WL 416437 (Bankr.M.D.Fla.); Greene, 207 B.R. at 24; In re Zimmerman, 204 B.R. 84 (Bankr.M.D.Fla.1996); In re Warner, 87 B.R. 199 (Bankr.M.D.Fla.1988). A willful intent to defeat or evade taxes may be inferred from any conduct likely to mislead or conceal. In re Griffith, 210 B.R. 216, 220 (S.D.Fla.1997); See also Biggs v. Commissioner, 440 F.2d 1, 5 (6th Cir.1971)(“Fraud need not be established by direct evidence, but can be shown by surveying the taxpayer’s entire course of conduct and drawing reasonable inferences therefrom”). In the context of determinations of fraudulent transfers under section 523(a)(1)(C), courts within the Eleventh Circuit have identified certain types of conduct as “badges of fraud” which serve as circumstantial evidence of willful intent to evade taxes. These badges of fraud include the following circumstances: 1) The recurrence of the understatement of income for more than one tax year; 2) The understatement of income; 3) Implausible or inconsistent explanations of behavior; 4) Inadequate records; 5) Transfer of assets to a family member; 6) Transfer for inadequate consideration; 7) Transfer that greatly reduced assets subject to IRS execution; 8) Transfers made in the face of serious financial difficulties. Landen, 1997 WL 416437; Huber, 213 B.R. at 184-85; Greene, 207 B.R. at 25; Zimmerman, 204 B.R. at 88; Warner, 87 B.R. at 202. No one factor is determinative; the court must base its decision on the totality of the circumstances. Greene, 207 B.R. at 25. While a single badge of fraud may amount to only a suspicious circumstance, a combination of them will justify a finding of fraud. United States v. Fernon, 640 F.2d 609 (5th Cir.1981); In re Tai, 1996 WL 529411" }, { "docid": "3712586", "title": "", "text": "defraud the government, or by applying the standard used in civil cases, which requires only a voluntary, conscious, and intentional attempt to evade taxes in any manner, e.g., failure to file a tax return. A majority of courts, however, have chosen to follow the less restrictive standard utilized in civil cases. Toti v. United States, 24 F.3d 806 (6th Cir.1994); In re Bruner, 1994 WL 461310 * 2 (W.D.La.1994); In re Sumpter, 170 B.R. 908, 913 (E.D.Mich.1994); In re Haas, 173 B.R. 756 (S.D.Ala.1993); In re Fridrich, 156 B.R. 41 (D.Neb.1993); In re Peterson, 152 B.R. 329 (D.Wyo.1993); In re Berzon, 145 B.R. 247 (Bankr.N.D.Ill.1992); In re Ketchum, 177 B.R. 628 (E.D.Mo.1995); In re Irvine, 163 B.R. 983 (Bankr.E.D.Pa.1994) (Court analogized the willingness requirement under § 523(a)(1)(C) to IRC § 6672, which imposes a penalty for an individual within a corporation responsible for paying withholding taxes who willfully fail to pay such taxes; willfulness under § 6672 as interpreted by the Third Circuit in United States v. Vespe, 868 F.2d 1328 (3d Cir.1989) means voluntary, conscious, or with reckless disregard ...). In this case, employing the majority view’s interpretation of the willingness prong under the civil standard, (a voluntary, conscious and intentional attempt to avoid taxes), we find it evident from the submitted evidence that appellant’s failure to correctly report the actual amount of additional income, was indeed voluntary, conscious, and intentional, and thereby, a willful attempt to evade a tax due under § 523(a)(1)(C). Accordingly, we find under the willfulness prong, as well as under the fraud prong, that the appellant’s tax obligations should not be discharged. As the court in Toti stated, “[t]he purpose of the Bankruptcy Code is to allow honest, but unfortunate debtors a fresh start. Its purpose is not to create a device for tax evasion”. Toti, 24 F.3d at 809 (quoting United States v. Toti, 149 B.R. 829, 834 (E.D.Mich.1993)). Consequently, this Court will enter an order affirming the bankruptcy court. . Indeed, in 1981, appellant actually reported income of $9000.00 from illegal drug sales. {See, Transcript of Bankruptcy Hearing, pgs. 6-7). . Appellant" }, { "docid": "6074862", "title": "", "text": "re Irvine, 163 B.R. 983 (Bankr.E.D.Pa.1994). The Irvine court stated: Under § 523(a)(1)(C), therefore, a debtor will be considered to have willfully attempted to evade a tax if he acted voluntarily, consciously, or intentionally or with reckless disregard for whether the tax has been paid. With respect to § 523(a)(1)(C), a debtor acts with reckless disregard if he knew or should have known that the tax was due and did not pay the tax. Irvine, 163 B.R. at 987. The IRS asserts that Fuller got money from his IRA accounts and spent it. He knew, or should have known, the correct amounts of his tax liabilities. Later, when he late-filed his tax returns, he had no money to pay. Then, when IRS subpoenaed his bank records and attached his disability payments and his pension, he wrote nasty letters about IRS procedures. He filed his delinquent tax returns only when an IRS agent threatened criminal prosecution. Such conduct, it is argued, warrants denial of discharge. We agree the appropriate standard is whether the debtor-taxpayer voluntarily, consciously, or intentionally attempted to evade taxes. However, we also agree with the Eleventh Circuit, that “a debtor’s failure to pay his taxes, alone, does not fall within the scope of Section 523(a)(l)(C)’s exception to discharge in bankruptcy.” Haas, at 1158. The mere failure to pay tax obligations does not amount to a voluntary, conscious or intentional attempt to evade taxes within the meaning of § 523(a)(1)(C). We find that the present case more closely resembles that of Haas rather than Toti or Bruner. Fuller did not have to be indicted and ordered by a court to file his delinquent returns. When contacted by the IRS agent, Fuller complied with his request to file the returns. Fuller, until the returns were prepared in 1990, honestly believed he had no tax liability. He had almost always received a refund in prior years and during the years in question, had calculated what he believed were the correct amounts of his tax liability and had those amounts withheld from his income. Fuller did not attempt to falsify records. He" }, { "docid": "1331619", "title": "", "text": "at a finding for willful evasion. Birkenstock, 87 F.3d at 951 (citing Dalton v. I.R.S., 77 F.3d 1297, 1301 (10th Cir.1996)). When nonpayment is combined with other actions, attempts to evade taxes can be established. See e.g., Matter of Bruner, 55 F.3d 195, 200 (5th Cir.1995) (debtors’ non payment combined with a pattern of failure to file returns, coupled with conduct obviously aimed at concealing income and assets clearly constituted an attempt to evade taxes); In re Toti, 24 F.3d 806, 809 (6th Cir. 1994), cert. denied, 513 U.S. 987, 115 S.Ct. 482, 130 L.Ed.2d 395 (1994) (failure to file tax returns and failure to pay taxes). Interwoven into the Court’s analysis is the underlying policy that Section 523(a)(1)(C) should be applied in such a fashion as to “best promote § 523’s purpose of limiting discharge to the honest but unfortunate debt- or.” Birkenstock, 87 F.3d at 951 (citation omitted). As for the mental state requirement, the Seventh Circuit concurs with the test set forth by the Sixth Circuit in Toti Willful evasion requires a “voluntary, conscious, and intentional” attempt to avoid tax liability. Toti 24 F.3d at 809 (this definition of willful equates with the definition found in civil tax cases) (citations omitted). Thus, a willful attempt to evade or defeat taxes requires that (1) the debtor knows he has a duty to pay the tax and (2) that he voluntarily and intentionally attempted to violate that duty. Birkenstock, 87 F.3d at 952. “This willfulness requirement prevents the application of the exception to debtors who make inadvertent mistakes, reserving nondischargeability for those whose efforts to evade tax liability are knowing and deliberate.” Id. [emphasis added]. The IRS presents two arguments to support its position that Mr. Sommers willfully evaded the payment of taxes. The IRS contends that Mr. Sommers’ transactions are nothing more than shams, In re Haimes, 173 B.R. 777, 781 (Bankr.S.D.Fla.1994) (corporations created solely for the purpose of disguising income and concealing assets), and the transfers themselves establish a willful attempt to evade taxation. See e.g., Lewis v. United States (In re Lewis), 151 B.R. 140, 146" }, { "docid": "1331620", "title": "", "text": "“voluntary, conscious, and intentional” attempt to avoid tax liability. Toti 24 F.3d at 809 (this definition of willful equates with the definition found in civil tax cases) (citations omitted). Thus, a willful attempt to evade or defeat taxes requires that (1) the debtor knows he has a duty to pay the tax and (2) that he voluntarily and intentionally attempted to violate that duty. Birkenstock, 87 F.3d at 952. “This willfulness requirement prevents the application of the exception to debtors who make inadvertent mistakes, reserving nondischargeability for those whose efforts to evade tax liability are knowing and deliberate.” Id. [emphasis added]. The IRS presents two arguments to support its position that Mr. Sommers willfully evaded the payment of taxes. The IRS contends that Mr. Sommers’ transactions are nothing more than shams, In re Haimes, 173 B.R. 777, 781 (Bankr.S.D.Fla.1994) (corporations created solely for the purpose of disguising income and concealing assets), and the transfers themselves establish a willful attempt to evade taxation. See e.g., Lewis v. United States (In re Lewis), 151 B.R. 140, 146 (Bankr.W.D.Tenn.1992) (concealing assets falls within willful attempt to evade in any manner); Jones v. United States (In re Jones), 116 B.R. 810, 814 (Bankr.D.Kan.1990) (transferring title in real estate sufficient to show intent to evade taxes). Thereafter, the IRS argues that Mr. Sommers’ course of conduct establishes a willful attempt to evade or defeat the taxes. Courts use the “badges of fraud” to establish the intent to evade taxes because direct evidence is rarely available. Dube, 169 B.R. at 891 (citations omitted). The badges of fraud include: (1) the recurrence of the understatement of income for more than one tax year; (2) the understatement of income; (3) implausible or inconsistent explanations of behavior; (4) inadequate records; (5) transfer of inadequate consideration; (6) transfer greatly reduced assets subject to IRS execution; (7) transfers were made in the face of serious financial difficulties. Mat 892. (citations omitted). The facts establish that income producing property from royalty agreements and the sale of stock was transferred to a series of different entities, including ones offshore. For instance, with the" }, { "docid": "20918258", "title": "", "text": "basis for such a restrictive reading of a civil statute (112 U.S.C. § 528(a)(1)(C)), even though exceptions to discharge are to be strictly construed in favor of debtors. Id. at 815. Further, the Jones court stated that the Gathwright court’s interpretation of the phrase at issue would render it superfluous. “If evading or defeating collection or payment of a tax does not count, this court is hard-pressed to conceive how a debtor might willfully attempt to evade or defeat a tax without also filing a fraudulent return.” Id. The Jones court also noted that a standard dictionary definition for “evade” is “to fail to pay.” Id. (citing Webster’s New Collegiate Dictionary, p. 395 (G. & . C. Merriam Co. 1975 ed.)). Finally, the Jones court stated that it believed the legislative history of the predecessor Bankruptcy Act provision to Section 523(a)(1)(C) disclosed a legislative intent to limit bankruptcy relief and discharge to the “financially unfortunate and not to create a tax evasion device.” Id. Berzon v. United States (In re Berzon), 145 B.R. 247, 250 (Bankr.N.D.Ill.1992), expressly rejected In re Gathwright. The Berzon court found the differences in the language of Section 523 of the Bankruptcy Code and Section 7201 to be “of no practical effect in terms of interpretation of the statute.” Berzon, 145 B.R. at 250. The Berzon court stated “[wjhether Berzon willfully attempted to evade income tax is a question of fact to be determined from the totality of the record.” Id. It stated the IRS must show by a preponderance of the evidence that Berzon willfully attempted to evade his tax obligation by filing late returns and understating his income. Also, [djirect proof of a debtor’s intent to evade tax obligations is usually unavailable. Thus, intent to evade taxes is generally provable by circumstantial evidence and reasonable inferences drawn from the existence of certain fact patterns, otherwise called badges of fraud.... In the income tax area, badges of fraud include significant understatements of income made repeatedly; failure to file tax returns; repeatedly filing returns late; implausible or inconsistent behavior by the taxpayer; and failure to cooperate" }, { "docid": "6074861", "title": "", "text": "in the years at issue. Id. Instead of satisfying his tax liability, the debtor-taxpayer used his income to pay personal and business expenses. Id. The Court held that “a debtor’s failure to pay his taxes, alone, does not fall within the scope of § 523(a)(l)(C)’s exception to discharge in bankruptcy.” Haas at 1158. The Court of Appeals of the Third Circuit has examined the “willfulness” requirement in the context of Internal Revenue Code § 6672 which imposes a 100% penalty on individuals within a corporation responsible for paying withholding taxes who willfully fail to pay such taxes. Quattrone Accountants Inc. v. Internal Revenue Service, 895 F.2d 921 (3d Cir.1990). It determined that “willfulness” within the meaning of § 6672 “means a voluntary, conscious and intentional decision to prefer other creditors over the Government.” Id. at 928. At least one Bankruptcy Court within the Third Circuit has determined that the interpretation of “willful” adopted by the Third Circuit in Quattrone is the appropriate standard to use when interpreting the meaning of “willful” in § 523(a)(1)(C). In re Irvine, 163 B.R. 983 (Bankr.E.D.Pa.1994). The Irvine court stated: Under § 523(a)(1)(C), therefore, a debtor will be considered to have willfully attempted to evade a tax if he acted voluntarily, consciously, or intentionally or with reckless disregard for whether the tax has been paid. With respect to § 523(a)(1)(C), a debtor acts with reckless disregard if he knew or should have known that the tax was due and did not pay the tax. Irvine, 163 B.R. at 987. The IRS asserts that Fuller got money from his IRA accounts and spent it. He knew, or should have known, the correct amounts of his tax liabilities. Later, when he late-filed his tax returns, he had no money to pay. Then, when IRS subpoenaed his bank records and attached his disability payments and his pension, he wrote nasty letters about IRS procedures. He filed his delinquent tax returns only when an IRS agent threatened criminal prosecution. Such conduct, it is argued, warrants denial of discharge. We agree the appropriate standard is whether the debtor-taxpayer voluntarily, consciously," }, { "docid": "7131821", "title": "", "text": "re Meyers), 196 F.3d 622 (6th Cir.1999) (affirming summary judgment in section 523(a)(1)(C) discharge-ability action). The United States was required to demonstrate that the taxes are nondischargeable by a preponderance of the evidence, Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), not by clear and convincing evidence, as asserted by the appellant May. See In re Griffith, 206 F.3d 1389, 1396 (11th Cir.2000); Brackin v. United States (In re Brackin), 148 B.R. 953 (Bankr.N.D.Ala.1992). The debt- or did not and does not contest the facts established by the United States, either below or on appeal. Inasmuch as we, too, find the evidence to be overwhelming, and the conclusion that May wilfully attempted to evade or defeat his taxes, inescapable, we affirm. III. Section 523(a)(1)(C) of the Bankruptcy Code provides that a discharge in bankruptcy does not discharge an individual debtor from any debt with respect to which the debtor “wilfully attempted in any manner to evade or defeat such tax.” Thus, there is a conduct element as well as intent element to the statute. Matter of Birkenstock, 87 F.3d 947 (7th Cir.1996). If a debtor is aware of the duty to pay his taxes, has the wherewithal to pay the taxes and takes steps to avoid paying them, there is a willful attempt to evade or defeat the tax. Factors which indicate an intent to evade tax obligations include understatements of income, failure to file tax returns, implausible or inconsistent behavior by the taxpayer, the failure to cooperate with the tax authorities, concealment of assets, dealing in cash, shielding income and otherwise frustrating collection efforts. Teeslink v. United States (In re Teeslink), 165 B.R. 708, 716 (Bankr.S.D.Ga.1994). A finding under section 523(a)(1)(C) may encompass various schemes, including concealment by which tax evasion may be accomplished. Conduct aimed at concealing income and assets constitutes a willful attempt to evade or defeat taxes. Bruner v. United States (In re Bruner), 55 F.3d 195 (5th Cir.1995). Moreover, a taxpayer’s later conduct does not nullify earlier willful attempts to defeat or evade the taxes. Meyers v. Internal Revenue Service" }, { "docid": "7131822", "title": "", "text": "element to the statute. Matter of Birkenstock, 87 F.3d 947 (7th Cir.1996). If a debtor is aware of the duty to pay his taxes, has the wherewithal to pay the taxes and takes steps to avoid paying them, there is a willful attempt to evade or defeat the tax. Factors which indicate an intent to evade tax obligations include understatements of income, failure to file tax returns, implausible or inconsistent behavior by the taxpayer, the failure to cooperate with the tax authorities, concealment of assets, dealing in cash, shielding income and otherwise frustrating collection efforts. Teeslink v. United States (In re Teeslink), 165 B.R. 708, 716 (Bankr.S.D.Ga.1994). A finding under section 523(a)(1)(C) may encompass various schemes, including concealment by which tax evasion may be accomplished. Conduct aimed at concealing income and assets constitutes a willful attempt to evade or defeat taxes. Bruner v. United States (In re Bruner), 55 F.3d 195 (5th Cir.1995). Moreover, a taxpayer’s later conduct does not nullify earlier willful attempts to defeat or evade the taxes. Meyers v. Internal Revenue Service (In re Meyers), 196 F.3d 622 (6th Cir.1999); see Badaracco v. Com missioner, 464 U.S. 386, 394, 104 S.Ct. 756, 78 L.Ed.2d 549 (1984) (“[A] taxpayer who submits a fraudulent return does not purge the fraud by subsequent voluntary disclosure; the fraud was committed, and the offense completed, when- the original return was prepared and filed.”). May engaged in so many evasive tactics, structuring all of his personal and business transactions and even his marital status to that end, that the only possible conclusion is that May wilfully, attempted to evade or defeat, payment of his taxes. May was aware of his duty to pay taxes as demonstrated by the fact that he filed federal income tax returns until 1979 and, as evidenced by the documentation appended to the United States motion for summary judgment May’s failure to deny any of the statements of fact. May had the ability to pay his taxes for the years at issue. Moreover, the record evidence overwhelmingly confirms that May took steps to evade paying his federal income taxes." }, { "docid": "5133993", "title": "", "text": "indicate $6,925.00 as debtor’s liability, including penalties and interest. In 1990, debtor paid all the taxes due as listed on his filed return. However, the IRS disallowed a FICA credit and claims debtor owes $3,924.00. Debtor was not noticed of the 1987 and 1990 adjustments to his return. Debtor has not yet filed a 1992 return due to an IRS subpoena of his records. Debtor’s total tax liability in the amount of $1,833,793.39 represents liability for tax in the amount of $597,004.63, penalties in the amount of $309,435.03 and interest in the amount of $927,353.73. The IRS contends that debtor has willfully attempted to evade his taxes by (1) filing serial bankruptcies for the same tax liabilities, (2) maintaining a lifestyle requiring expenditures of $120,000.00 annually and trav-elling abroad without making any meaningful payments on his tax liabilities, (3) dealing in cash and paying his entire Medical College income to current withholding to avoid IRS levies, and (4) continuing to file late income tax returns while in bankruptcy. Proof of a willful attempt to evade a tax under § 523(a)(1)(C) requires a showing of a debtor’s specific intent to evade a tax believed to be owing. In re Gilder, 122 B.R. 593 (Bankr.M.D.Fla.1990) and In re Carapella, 105 B.R. 86 (Bankr.M.D.Fla.1989) aff'd 115 B.R. 365 (M.D.Fla.1990) aff'd 925 F.2d 1474 (11th Cir.1991) (adopting the standard for finding civil tax fraud under 26 U.S.C. § 6653(b)). Whether debtor intended to evade his tax obligations is a question of fact to be determined from the totality of the record. In re Berzon, 145 B.R. 247, 250 (Bankr.N.D.Ill.1992). As direct proof of such intent is usually unavailable, such intent must be proved by circumstantial evidence. Id. Fact patterns evidencing badges of fraud include “significant understatements of income made repeatedly; failure to file tax returns; repeatedly filing returns late; implausible or inconsistent behavior by the taxpayer, and failure to cooperate with federal tax authorities.” Id. (finding willfulness where filed returns two to five years late, understated income by more than 50% for two tax years). See also In re Gilder, supra (filing false withholding" }, { "docid": "3712585", "title": "", "text": "income must be reported to the IRS at the bankruptcy hearing. (See, Trans, pg. 9-10). After careful consideration, in light of all the aforementioned factors, it is the opinion of this Court that the bankruptcy court was correct in holding that the United States met its burden of proving that appellant filed fraudulent returns for 1980 and 1981. For purposes of our analysis, it is necessary only to consider whether the United States has met its burden of proof on one of the two prongs and it is clear that it did so with regard to the first prong (making a fraudulent return). Nevertheless, although not strictly necessary to our ruling, we will consider whether the evidence likewise supports a finding that the debtor willfully attempted to evade or defeat additional income tax. With respect to the willful evasion prong of § 523(a)(1)(C), there is a split of opinion among courts as to whether it should be interpreted by applying the restrictive criminal standard, which requires that a taxpayer commit an affirmative act calculated to defraud the government, or by applying the standard used in civil cases, which requires only a voluntary, conscious, and intentional attempt to evade taxes in any manner, e.g., failure to file a tax return. A majority of courts, however, have chosen to follow the less restrictive standard utilized in civil cases. Toti v. United States, 24 F.3d 806 (6th Cir.1994); In re Bruner, 1994 WL 461310 * 2 (W.D.La.1994); In re Sumpter, 170 B.R. 908, 913 (E.D.Mich.1994); In re Haas, 173 B.R. 756 (S.D.Ala.1993); In re Fridrich, 156 B.R. 41 (D.Neb.1993); In re Peterson, 152 B.R. 329 (D.Wyo.1993); In re Berzon, 145 B.R. 247 (Bankr.N.D.Ill.1992); In re Ketchum, 177 B.R. 628 (E.D.Mo.1995); In re Irvine, 163 B.R. 983 (Bankr.E.D.Pa.1994) (Court analogized the willingness requirement under § 523(a)(1)(C) to IRC § 6672, which imposes a penalty for an individual within a corporation responsible for paying withholding taxes who willfully fail to pay such taxes; willfulness under § 6672 as interpreted by the Third Circuit in United States v. Vespe, 868 F.2d 1328 (3d Cir.1989) means voluntary," }, { "docid": "2302331", "title": "", "text": "tax if he acted voluntarily, consciously or intentionally or with reckless disregard for whether the tax has been paid. With respect to § 523(a)(1)(C), a debtor acts with reckless disregard if he knew or should have known that the tax was due and did not pay the tax. Since direct proof of a debtor’s willful attempt to evade taxes may be difficult to establish, “circumstantial evidence and reasonable inferences” drawn therefrom may be used to establish the debtor’s willfulness. Graham, 108 B.R. at 501. The existence of some of the badges of fraud may also indicate the debtor’s willfulness under § 523(a)(1)(C). The concealment of assets is one such badge that has been found to evidence a willful evasion or defeat of taxes under § 523(a)(1)(C). Lewis v. Internal Revenue Service (In re Lewis), 151 B.R. 140, 146 (Bankr.W.D.Tenn.1992) (citing Sumpter, 136 B.R. at 701); In re Jones, 116 B.R. 810, 814 (Bankr.D.Kan.1990). Here, the IRS argues that it sustained its burden under the first prong of § 523(a)(1)(C), i.e., filing fraudulent return, by showing the existence of the following badges of fraud: (1) a pattern of discrepancies over a two year period; (2) the Debtor’s creation and perpetuation of a sophisticated embezzlement scheme and his position as an assistant branch manager of a bank indicating that the Debtor was a sophisticated individual who knew that the-embezzled funds should have been reported on his tax returns; (3) the Debtor’s filing of his own tax returns and the associated duty to determine how to properly file the tax returns; (4) the Debt- or’s involvement in criminal activity indicating a purposeful intent to conceal the embezzled funds; and (5) the Debtor’s failure to keep records of the embezzled funds. The IRS argues that it sustained its burden under the second prong of § 523(a)(1)(C), i.e., willful attempt to evade taxes, by way of circumstantial evidence that the Debtor kept no records of the embezzled funds and that the Debtor’s behavior of successive non-reporting established a pattern which demonstrates a willful attempt to evade taxes. Further, the Debtor’s position as assistant branch manager" }, { "docid": "5133994", "title": "", "text": "a tax under § 523(a)(1)(C) requires a showing of a debtor’s specific intent to evade a tax believed to be owing. In re Gilder, 122 B.R. 593 (Bankr.M.D.Fla.1990) and In re Carapella, 105 B.R. 86 (Bankr.M.D.Fla.1989) aff'd 115 B.R. 365 (M.D.Fla.1990) aff'd 925 F.2d 1474 (11th Cir.1991) (adopting the standard for finding civil tax fraud under 26 U.S.C. § 6653(b)). Whether debtor intended to evade his tax obligations is a question of fact to be determined from the totality of the record. In re Berzon, 145 B.R. 247, 250 (Bankr.N.D.Ill.1992). As direct proof of such intent is usually unavailable, such intent must be proved by circumstantial evidence. Id. Fact patterns evidencing badges of fraud include “significant understatements of income made repeatedly; failure to file tax returns; repeatedly filing returns late; implausible or inconsistent behavior by the taxpayer, and failure to cooperate with federal tax authorities.” Id. (finding willfulness where filed returns two to five years late, understated income by more than 50% for two tax years). See also In re Gilder, supra (filing false withholding statements and failure to file tax returns until visited by IRS agent); In re Carapella, supra (substantial understatement of income by $275,000.00, failure to keep accurate records, mail fraud conviction, use of shell corporations to conceal income). Concealment of assets, dealing in cash, shielding income and otherwise frustrating IRS collection efforts are also indications of willful attempts to evade a tax. In re Lewis, 151 B.R. 140, 146 (Bankr.W.D.Tenn.1992). In this case, debtor has consistently failed to timely file his tax returns and plead guilty to criminal failure to file his 1980 tax return. During the years 1979 to 1987 debt- or failed to pay all the tax due as listed on his returns. The only payments made on debt- or’s almost two million dollar outstanding tax liability were involuntary — resulting from an IRS levy on his checking account, his wages and his residence. See In re Fernandez, 112 B.R. 888, 892 (Bankr.N.D.Ohio 1990) (failure to make voluntary payments, failure to file); Lewis, supra, at 144 (failure to pay all of tax obligations when" }, { "docid": "21274376", "title": "", "text": "of a debtor’s intent, intent may be proven by circumstantial evidence. See, e.g., In re Dalton, 77 F.3d at 1303-04; In re May, 247 B.R. at 793; Teeslink v. United States (In re Teeslink), 165 B.R. 708, 716 (Bankr.S.D.Ga.1994). For purposes of § 523(a)(1)(C), the Sixth Circuit “equates ‘willful’ with voluntary, conscious, and intentional ....” In re Toti, 24 F.3d at 809. Thus, “[t]he mental state requirement is proven when the debtor: ‘(1) had a duty to pay taxes; (2) knew he had such a duty; and (3) voluntarily and intentionally violated that duty[.]’ ” In re Gardner, 360 F.3d at 558 (quoting United States v. Fretz (In re Fretz), 244 F.3d 1323, 1330 (11th Cir. 2001)). “This willfulness requirement prevents the application of the exception to debtors who make inadvertent mistakes, reserving nondischargeability for those whose efforts to evade tax liability are knowing and deliberate.” In re Birkenstock, 87 F.3d at 952. The Conduct Element The IRS proved the conduct element based on the debtor’s acts of filing his tax returns late, failing to pay the taxes even though he had enough money to pay for non-necessities such as vacations and private school, and concealing his interest in the Crossbrook property. The evidence clearly showed that the debtor repeatedly failed to timely file his income tax returns and repeatedly failed to pay the taxes assessed. While the debtor did file his 1999 tax return on time and eventually filed his 1997 and 1998 tax returns, a debtor’s belated and partial compliance with the law does not nullify his initial failures to file returns and pay the liability. See, e.g., In re Myers, 216 B.R. at 405; Hassan v. United States (In re Hassan), 301 B.R. 614, 623 (S.D.Fla.2003). In addition to omitting to file his returns and pay his taxes, the debtor also affirmatively evaded paying taxes by the manner in which he structured the Crossbrook property transaction. The overwhelming weight of the evidence showed that the transaction between Audrey Volpe and Janice Justice was a sham, and that the debtor had an ownership interest in the property. There" }, { "docid": "1331626", "title": "", "text": "IRS’s case. The Court finds that the tax deficiencies of $39,269.00 for 1980 and $76,723.00 for 1981, should be excepted from discharge under Section 523(a)(1)(C) due to Mr. Sommers willful attempt to evade the payment of taxes. B. Fraudulent Return The plain language of Section 523(a)(1)(C) reveals that the IRS would only have to prove either a willful attempt to evade the payment of taxes or the making of a fraudulent return. Despite finding that the Mr. Sommers willfully attempted to evade the payment of taxes, the Court will delve into the issue of whether a fraudulent return was filed. The standard for proving “fraud” under Section 523(a)(1)(C) is synonymous to the standard for proving a civil fraud penalty under the Internal Revenue Code. Irvine, IV v. Commissioner of Internal Revenue Service (In re Irvine), 163 B.R. 983, 985-86 (Bankr.E.D.Pa.1994). Evil motive or sinister purpose is unnecessary. Id. (citing Granado v. C.I.R., 792 F.2d 91, 93 (7th Cir.1986)). Courts will rely on the “badges of fraud” to determine civil fraud penalty under the Internal Revenue Code. Irvine, 163 B.R. at 986 (citations omitted). The badges of fraud include: (1) large understatements of income made consistently over time; (2) failure to keep adequate records; (3) failure to file tax returns; (4) implausible or inconsistent behavior by the taxpayer; (5) concealing assets; (6) failure to cooperate with taxing authorities. Id. The IRS raises essentially the same arguments as it did under “willful attempt to evade,” and again the Court agrees. First, understatements of income exist over a two year period. These understatements are the by-product of a series of transactions carefully designed to evade the payment of taxes. As previously shown, Mr. Sommers’ explanations are both inconsistent and implausible. The fact that Mr. Sommers brought this to the attention of the IRS, for whatever reason, does not overcome the evidence presented by the IRS. Sufficient indicia exist to establish a fraudulent return was made. The Court finds that the tax deficiencies of $39,269.00 for 1980 and $76,723.00 for 1981, should be excepted from discharge under Section 523(a)(1)(C) due to the making of" }, { "docid": "13043432", "title": "", "text": "closed one of his letters with the following words: I wonder how any of You sleep or face yourselves in the mirror, inasmuch as you are defacto SLAVERS, and will, in the end, distroy [sic] our country and the Constitution in order to keep Your paychecks coming in and your standard of living, even if it means selling the children, Your own Children, into Slavery. I hope you suffer cancer and die a slow painful death, as all tyrants should. (Id. at Exs.2 and 4). Under the circumstances here presented, the Court has little difficulty concluding that Mr. Wilbert, through both his acts and omissions, intended to evade or defeat his tax liability. See Teeslink, 165 B.R. at 716 (implausible behavior, along with one’s failure to cooperate with the IRS, is an indication of willful attempt to evade taxes); cf. Laurin v. United States (In re Laurin), 161 B.R. 73, 75 (Bankr.D.Wyo.1993) (debtor intended to avoid paying taxes within the meaning of § 523(a)(1)(C) by sending tax protester materials to the IRS). With respect to the mental requirement contained in § 523(a)(1)(C), the IRS must demonstrate that Mr. Wilbert “willfully” sought to evade or defeat his taxes. Griffith, 206 F.3d at 1396; Fegeley, 118 F.3d at 983; Birkenstock, 87 F.3d at 952. “[C]ourts have interpreted ‘willfully,’ ... to require that the debtor’s attempts to avoid his tax liability were ‘voluntary, conscious, and intentional.’ ” Fegeley, 118 F.3d at 984; see also Birkenstock, 87 F.3d at 952 (quoting Toti, 24 F.3d at 808). To this end, the IRS must prove the following: 1. that the debtor had a legal duty to file income tax returns; 2. that the debtor knew that he had such a duty; and 3. that the debtor voluntarily and intentionally violated that duty. Griffith, 206 F.3d at 1396; Fegeley, 118 F.3d at 984; Birkenstock, 87 F.3d at 952; Bruner, 55 F.3d at 197. Here, Mr. Wilbert has admitted by way of stipulation that he was cognizant of his duties to file income tax returns and pay taxes. Primarily due to his tax protester beliefs, Mr. Wilbert voluntarily," }, { "docid": "20918259", "title": "", "text": "(Bankr.N.D.Ill.1992), expressly rejected In re Gathwright. The Berzon court found the differences in the language of Section 523 of the Bankruptcy Code and Section 7201 to be “of no practical effect in terms of interpretation of the statute.” Berzon, 145 B.R. at 250. The Berzon court stated “[wjhether Berzon willfully attempted to evade income tax is a question of fact to be determined from the totality of the record.” Id. It stated the IRS must show by a preponderance of the evidence that Berzon willfully attempted to evade his tax obligation by filing late returns and understating his income. Also, [djirect proof of a debtor’s intent to evade tax obligations is usually unavailable. Thus, intent to evade taxes is generally provable by circumstantial evidence and reasonable inferences drawn from the existence of certain fact patterns, otherwise called badges of fraud.... In the income tax area, badges of fraud include significant understatements of income made repeatedly; failure to file tax returns; repeatedly filing returns late; implausible or inconsistent behavior by the taxpayer; and failure to cooperate with federal tax authorities. Id. In the case, the debtor had argued that he was so debilitated by a cocaine habit that he could not have willfully attempted to evade or defeat the payment of taxes. The court' rejected the debtor’s defense, and stated that “a debtor’s habitual use of cocaine is voluntary and intentional.” Id. at 251. “Willful is defined as ‘intentional, deliberate, voluntary.’ Blacks Law Dictionary, 6th ed. 1990. See also, Cheek v. U.S., 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). As previously indicated, in determining whether the debtor acted willfully in trying to evade or defeat the payment of his taxes the court will look for certain fact patterns, badges of fraud, that lead logically to the conclusion that his actions were willful and part of a scheme to that end. See, e.g., In re Fernandez, 112 B.R. 888 (Bkrtcy. N.D.Ohio 1990) (debtor willfully attempted to evade taxes when the debtor filed his tax returns late, did not make voluntary payments on his tax liabilities, and submitted a W-4" } ]

[ { "docid": "4654384", "title": "", "text": "for the allowance of administrative expenses, decides the matter. In that order, movant and debtors “agree that the [movant] is entitled to compensation for the . use of certain mortgaged farmland for the crop year 1986 and it is agreed that debtors will pay to [movant] the sum of $8,640.00 as administrative expenses — ” SBJ contends that this order has res judicata effect as to its entitlement to administrative expenses for 1987 and 1988. Accordingly, the Court must first resolve whether the payments sought by movant are permissible administrative expenses. Second, if the payments are not permitted under the Bankruptcy Code, the Court must determine if the consent order operates to allow them under the principle of res judicata. Priority statutes such as 11 U.S. C. § 503 are to be strictly construed. In re 1 Potato 2, Inc., 71 B.R. 615, 618 (Bankr.D.Minn.1987) (citing Standard Oil Company v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964)). The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence. In re 1 Potato 2, Inc., 71 B.R. at 618 (citing Matter of Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wisc.1986)). In the instant case, movant has provided no authority to show that the payment it seeks is in the nature of an administrative expense permitted under § 503(b)(3)(D) or that it has made a substantial contribution to the bankruptcy estate by permitting debtors to use the collateral. Nor has the Court been able to locate any authority supporting movant’s position. In fact, the authority which the Court finds to be instructive holds that movant may not be compensated for the debtors’ use of the collateral as an administrative expense under the facts of this case. As noted earlier, this is not a situation where movant is entitled to rent as a matter of leasehold or other contractual right. Nor can § 503 be used to circumvent the requirements of proving entitlement to adequate protection. Thus, in Matter of Provincetown-Boston Airline, Inc., 66 B.R. 632 (Bankr.M.D.Fla.1986), the court disallowed a" } ]

[ { "docid": "4636492", "title": "", "text": "by customers until after the bankruptcy case had begun. DISCUSSION Kelly earned commissions based on the net value of orders placed by Dynacircuits’ customers from his sales territory. Pursuant to the Agreement, Kelly’s commissions were not deemed earned or accrued until the Debtor’s customers had paid for their orders. The commissions that Kelly’s motion seeks to have allowed as an administrative expense priority consist of commissions on orders placed by customers pre-petition but for which they did not pay until post-petition. Kelly argues that because his commissions were not deemed earned and accrued until after the Debtor commenced its bankruptcy case, his claim is for “commissions for services rendered after the commencement of the case” and entitled to administrative priority status. 11 U.S.C. § 503(b)(1)(A). Section 503(b) of the Bankruptcy Code provides in relevant part: (b) After notice and a hearing, there shall be allowed, administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries or commissions for services rendered after the commencement of the case[] (emphasis added). Section 507(a), in turn, grants first priority status to administrative expenses allowed pursuant to § 503(b). The burden of proving entitlement to an administrative expense priority rests with the party seeking its allowance. In re Highland Group, Inc., 136 B.R. 475, 481 (Bankr.N.D.Ohio 1992); In re Patch Graphics, 58 B.R. 743 (Bankr.W.D.Wis.1986). Statutory priorities are narrowly construed. Trustees of Amalgamated Ins. Fund v. McFarlin’s, Inc., 789 F.2d 98, 100 (2nd Cir.1986) citing Joint Industry Bd. of Electrical Industry v. United States, 391 U.S. 224, 228, 88 S.Ct. 1491, 1493, 20 L.Ed.2d 546 (1968). The determination of whether an administrative expense will be allowed turns on the timing of the services rendered for which the allowance is sought. The Seventh Circuit has adopted a two part test originally'set forth by the First Circuit in In re Mammoth Mart, Inc., 536 F.2d 950 (1976) which provides that an administrative expense is allowed where the debt (1) arises from a transaction with the debtor-in-possession; and (2) is beneficial to the debtor-in-possession in the operation of its business." }, { "docid": "12671602", "title": "", "text": "whether or not a claim is entitled to administrative priority. Butcher, 108 B.R. at 636. Along with this discretion, however, goes the mandate taken from Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986), that bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary.” Butcher, 108 B.R. at 636-637. The next rule the court introduces is the one handed down in In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988). This holding states that the party making the motion for payment of administrative expenses has the burden of showing that the claim is in fact entitled to such priority. Butcher, 108 B.R. at 637. The fourth and final instruction Butcher gives is that within this burden of proof is the requirement that the movant show the reasonableness and necessity of the expense and also the benefit conferred on the estate. Butcher, 108 B.R. at 637 citing In re Hendersonville Bowling Center, Inc., 65 B.R. 963, 965 (Bankr.M.D.Tenn.1986). Keeping the Butcher mandates in mind, it is now necessary to inquire as to whether or not MHA is entitled to administrative expenses. In this proceeding, MHA has cited In re Pearson and In re Multech which support their claim of administrative expenses. Also, MHA has offered § 365 as authority for their claim. Considering these authorities together, along with the fact that debtor has not directed the Court’s attention to any caselaw which discounts MHA’s cited authority, this Court finds that MHA has met their burden of showing entitlement to administrative priority. This Court also finds that MHA has demonstrated the re quired “reasonableness,” “necessity” and “benefit conferral.” The cases MHA cites, along with the remainder of the vast body of caselaw regarding administrative expenses, clearly indicate that MHA’s allowance of debtor’s continued residence was a definite benefit to the estate. The low monthly rent of approximately $220 allowed debtor to preserve the majority of her estate for the payment of other debts. Had MHA objected to the lease assumption in debtor’s plan, it is most likely debtor would have had to find another residence in which to" }, { "docid": "15227978", "title": "", "text": "days after the sale of the Property, which is not an unreasonable delay. Therefore, the court, in its discretion, will allow these tardy claims. Administrative Expense Claim under § 503(b) To be permitted as an administrative expense claim under § 503(b), the court must find, after notice and a hearing, that the entity claiming the administrative expense paid “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case,” and that the debt arose post-petition. 11 U.S.C. § 503(b)(1)(A). Bankruptcy courts must narrowly construe the terms “actual” and “necessary” to determine whether a creditor should be allowed an administrative expense claim. See, e.g., In re Merry-Go-Round Enters., 180 F.3d 149, 157 (4th Cir.1999); In re Packard Props., Ltd., 118 B.R. 61, 63 (Bankr.N.D.Tex.1990); Grantham v. Eastern Marine, Inc., 93 B.R. 752, 754 (Bankr.N.D.Fla.1988). The burden of proof to demonstrate that a claim is an administrative expense is on the movant. In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988). There is a split in authority regarding the treatment of homeowners’ association assessments. Some courts hold that a homeowners’ association’s right to payment is based on a contract theory, and thus is a pre-petition debt. See, e.g., In re Rosteck, 899 F.2d 694, 697 (7th Cir.1990); Matter of Wasp, 137 B.R. 71, 73 (Bankr. M.D.Fla.1992); In re Miller, 125 B.R. 441, 443 (Bankr.W.D.Pa.1991). However, the Fourth Circuit has held that homeowners’ association assessments are nondischargeable, postpetition debts that arise from a covenant running with the land. In re Rosenfeld, 23 F.3d 833, 836-37 (4th Cir.1994); see also In re Lozada, 214 B.R. 558 (Bankr.E.D.Va.1997), aff'd 176 F.3d 475 (4th Cir.1999) (holding that 11 U.S.C. § 523(a)(16), which allows a discharge of condominium fees or a share of a cooperative housing corporation unless the debtor continues to physically occupy the condominium or cooperative project, superseded Rosenfeld as it applied to condominium and cooperative housing association fees, but did not affect Rosenfeld’s treatment of other homeowner’s association fees). Following the Fourth Circuit in Rosenfeld, even though the Debtor entered into the" }, { "docid": "5502842", "title": "", "text": "commissions for services rendered after the commencement of the case: 11 U.S.C. § 503(b)(1)(A). Priority statutes such as section 503 are to be strictly construed. In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988). ' The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence. Sinclair, 92 B.R. at 788; In re 1 Potato 2, Inc., 71 B.R. 615, 618 (Bankr.D.Minn.1987). The Seventh Circuit set forth a two-prong test for determining an administrative claim pursuant to section 503(b)(1)(A). A claim will be afforded such priority if the debt both (1) arises from a transaction with the Debtors and (2) that transaction benefited the estates in the operation of post-petition business. In re Jartran, Inc., 732 F.2d 584, 587 (7th Cir.1984). Claims should be granted administrative priority status only if the claim comports with the language and underlying purposes of section 503. Jartran, 732 F.2d at 588; In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 658 F.2d 1149, 1163 (7th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982) (general rule is equality of distribution; deviation must appear in the statute). In Jartran, the Seventh Circuit held that when third parties are induced to supply goods or services to the debtor, and the estate is benefited, the claims of those entities should be afforded priority so as to provide incentive to third parties to furnish credit necessary for the debtor’s reorganization. It cannot be said that providing administrative priority to a pre-petition claim would further this policy. Id. at 588-589. In order to qualify as “actual” and “necessary” administrative expenses, expenditures must benefit the estate as a whole rather than just the creditor claimant. In re Jartran, Inc., 886 F.2d 859, 871 (7th Cir.1989); In re Jartran, Inc., 71 B.R. 938, 945 (Bankr.N.D.Ill.1987), aff'd, 886 F.2d 859 (7th Cir.1989); see also In re Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986); In re McK, Ltd., 14 B.R. 518, 520 (Bankr.D.Colo.1981). In the case of In re Subscription Television of Greater Atlanta, 789 F.2d" }, { "docid": "18767868", "title": "", "text": "Substantial contribution has been defined as Services ... which foster and enhance, rather than retard or interrupt the progress of reorganization ... Those services which are provided solely for the client-as-creditor, such as those services rendered in prosecuting a creditor’s claim, are not compensable. [Compensable services] are those which facilitated the progress of these cases.... In re Richton International Corp., 15 B.R. 854, 857 (Bankr.S.D.N.Y.1981). Put another way, services must provide a “demonstrable benefit to the debtor’s estate, [or] the creditors, ... in order to be compensable. In re Jensen-Farley Pictures, Inc., 47 B.R. at 569. In re Paolino, 71 B.R. 576 (Bankr.E.D.Pa.1987). An incidental benefit is not a sufficient basis to grant an administrative priority. Matter of Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986). In addition to the requirement that the creditor show that the services rendered a significant and demonstrable benefit, an administrative expense may not be allowed absent a finding that the expense is necessary for preserving the estate. In re Club Development & Management Corp., 27 B.R. 610, 612 (9th Cir.BAP 1982). Since an administrative expense constitutes a priority claim, any recovery must be subject to strict scrutiny by the court. Priority statutes are strictly construed. Standard Oil Company v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964). The burden of proof is on the party making the administrative claim. Patch Graphics, 58 B.R. at 745. See, Woods v. City National Bank and Trust Company, 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). The term “actual” and “necessary” must be narrowly construed to preserve the estate. Patch Graphics, 58 B.R. at 745. The movant bears a heavy burden in requesting compensation under § 503(b). While “substantial contribution” does not require a contribution that leads to confirmation of a plan the phrase clearly requires contribution which provides tangible benefits to the bankruptcy estate and the other unsecured creditors. Thus to the extent that the “substantial contribution” requirement adds anything to the requirements discussed previously, it is to increase the burden of proof which a claimant for administrative expense must bear. Patch Graphics, 58 B.R." }, { "docid": "3560232", "title": "", "text": "administrative expense. The trustee admits that the Association is a secured creditor and that it was not paid the fees assessed against the lots prior to their abandonment. He denies, however, that the services rendered by the Association were “necessary costs and expenses of preserving [the lots]” as that term is construed under Code § 503(b)(1)(A). The trustee further argues that the Association, having failed to seek the lifting of the automatic stay since 1983 when the debtor commenced his bankruptcy case, sat upon its rights and should not now be able to seek reimbursement from the estate for fees and penalties. The trustee also argues that the Association would have continued to provide the services even had the trustee requested that the Association cease providing its services. In support of his argument, the trustee notes that the Association was obligated by contract to provide its services to all of the property owners in the subdivision. II Bankruptcy Code § 503 provides in material part: (b) After notice and a hearing, there shall be allowed, administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case[.] 11 U.S.C.A. § 503 (West 1979 and Supp. 1989). The court has broad discretion to determine whether a claim for an administrative expense is, in actuality, an administrative expense. In re Dakota Industries, 31 B.R. 23, 26 (Bankr.D.S.D.1983). Bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary.” Grantham v. Eastern Marine, Inc., 93 B.R. 752, 754 (Bankr.N.D.Fla.1988); In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988); In the Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). The burden of proof to demonstrate that the claim is an administrative claim is upon the movant. In re Sinclair, 92 B.R. at 788; Patch Graphics, 58 B.R. at 745. The movant must also show “that the expenses were reasonable, necessary and benefited the estate.” In re Hendersonville Bowling Center, Inc., 65 B.R. 963, 965 (Bankr.M.D.Tenn.1986). The Patch Graphics court stated that “the expense in" }, { "docid": "8853750", "title": "", "text": "allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorney or accountant. 11 U.S.C. §§ 503(b)(3)(A), (D) and 503(b)(4). W & S’s client, CBT, was a petitioning creditor as provided in section 503(b)(3)(A) and made a substantial contribution under section 503(b)(3)(D). Thus, W & S as CBT’s attorneys have applied for compensation under section 503(b)(4). Priority statutes such as section 503 are to be strictly construed to keep administrative expenses at a minimum so as to preserve the estate for the benefit of the creditors. See In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988); In re O.P.M. Leasing Services, Inc., 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982). The burden of proving entitlement to an administrative expense is on the claimant and the standard of proof is a preponderance of the evidence. Sinclair, 92 B.R. at 788; In re 1 Potato 2, Inc., 71 B.R. 615, 618 (Bankr.D.Minn.1987); In re S & T Industries, Inc., 63 B.R. 656, 657 (Bankr.W.D.Ky.1986). Claims should be granted administrative priority status only if the claim comports with the language and underlying purposes of section 503. In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984); In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 658 F.2d 1149, 1163 (7th Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982) (general rule is equality of distribution; deviation must appear in the statute). In order to qualify as “actual” and “necessary” administrative expenses, expenditures must benefit the estate as a whole rather than just the creditor claimant. In re Jartran, Inc., 886 F.2d 859, 871 (7th Cir.1989); In re Jartran, Inc., 71 B.R. 938, 945 (Bankr.N.D.Ill.1987), aff'd, 886 F.2d 859 (7th Cir.1989); see also In re Patch Graphics, 58 B.R. 743, 746 (Bankr.W.D.Wis.1986); In re McK, Ltd., 14 B.R. 518, 520 (Bankr.D.Colo.1981). The language of section 503 continues the rule under the former Bankruptcy Act that a creditor’s right to payment" }, { "docid": "16453173", "title": "", "text": "Moore, supra, 109 B.R. at 780, quoting In re Hendersonville Bowling Center, Inc., 65 B.R. 963, 965 (Bankr.M.D.Tenn.1986) (the movant must show “that the expenses were reasonable, necessary and benefitted the estate”); Leedy II, supra, 111 B.R. at 491, quoting Grant Broadcasting, supra, 71 B.R. at 897 (entitlement to administrative claims focuses upon “the necessity of the expenses to the preservation of the debtor’s estate ”); and In re Keegan Utility Contractors, Inc., 70 B.R. 87, 89 (Bankr.W.D.N.Y.1987) (only “[t]he actual and necessary expenses of the trustee [or debtor-in-possession] of operating a business, for storage of property, for rent, for taxes and other costs incidental to protection and conservation are contemplated within the phrase ‘the actual, necessary costs and expenses of preserving the estate’ ”, quoting 3 COLLIER ON BANKRUPTCY, ¶ 503.04[l][a][i] (15th ed. 1986)). The status of a claim as post-petition is also a necessary condition for an administrative claim. However, the fact that a claim arises post-petition is not a sufficient condition for a claim to be classified as administrative. A claim is not entitled to priority simply because the right to payment arises after the debtor-in-possession is in place. Amarex, supra, 853 F.2d at 1530. As the foregoing caselaw reveals, § 503(b)(1)(A) has been narrowly construed to authorize a priority for only those post-petition costs and expenses which are “actual” and “necessary” to preserving the estate. The services performed which generated the costs and expenses must benefit the debtor-in-possession and not merely “further the self-interest of the particular claimant.” S.M.B. Holdings, supra, 77 B.R. at 32. “When a creditor incurs expenses primarily to protect its own interest the creditor is not entitled to a priority administrative claim.” Patch Graphics, supra, 58 B.R. at 746. See also Leedy II, 111 B.R. at 492-93 (costs incurred to benefit the claimants’ own interests are not entitled to administrative priority). Further, the benefit or contribution to the debtor-in-possession from services entitled to administrative priority must be substantial, not merely incidental. Patch Graphics, supra, 58 B.R. at 746. See also D.W.G.K. Restaurants, supra, 84 B.R. at 689; In re American 3001 Telecommunications," }, { "docid": "16453170", "title": "", "text": "B.R. at 680. See also Moore, supra, 109 B.R. at 780 (the burden to demonstrate that the claim is an administrative claim is upon the movant); Patch Graphics, supra, 58 B.R. at 745, citing Woods v. City National Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941) (the burden of proof is upon the party seeking an administrative claim); and In re Central Rubber Products, Inc., 31 B.R. 865, 870 (Bankr.D.Conn.1983), quoting 3A COLLIER ON BANKRUPTCY, 11 64.701, at 2276 (14th ed. 1975) (unlike a general claim, “a claim of priority when alleged does not shift the burden of going forward to an objector thereto, the claimant must introduce proof sustaining his claim to priority”). See also Consolidated Oil & Gas, supra, 110 B.R. at 537; In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988); and D.W.G.K. Restaurants, supra, 84 B.R. at 689. The bankruptcy court has considerable discretion in deciding whether to characterize a claim as an administrative expense entitled to the attendant priority provided by § 503(b)(1)(A) or not. See Baldwin-United, supra, 43 B.R. at 453 (bankruptcy court has “reasonable discretion” in awarding administrative priority expenses); Moore, supra, 109 B.R. at 780, citing In re Dakota Industries, 31 B.R. 23, 26 (Bankr.S.D.D.1983) (the court has broad discretion to determine whether a claim for an administrative expense is, in actuality, an administrative expense); and Rife, supra, 71 B.R. at 131 (“while the court has reasonable discretion in interpreting the provisions of § 503, such discretion does not include the power to go beyond the clear intent and well-established construction of the statute”). See also Guaranty National, supra, 90 B.R. at 462-63; and In re Texaco, Inc., 90 B.R. 622, 630 (Bankr.S.D.N.Y.1988). Section 503(b)(1)(A), quoted on page 825 supra, provides that only “the actual, necessary costs and expenses of preserving the estate” of a debtor are entitled to priority status as administrative expenses. Mammoth Mart, supra, is generally cited as establishing the appropriate test for determining entitlement to administrative expense priority. See Amarex, supra, 853 F.2d at 1530; Guaranty National, supra, 90 B.R. at" }, { "docid": "16456225", "title": "", "text": "to creditors. Had notice been given and prior approval sought in this case, both the latent “entanglements” between Young and the three bankruptcy estates and the extant appearance of impropriety would have been brought out in the open during the hearing and dealt with prior to the performance of services for which Latino now seeks a fee. See generally, In re Carolina Sales Cory., 45 B.R. 750, 753 (Bankr.E.D.N.C.1985). Latino requests compensation under 11 U.S.C. § 503(b)(1)(A). This Court has found that Latino is a professional person, thus subjecting it to the requirements of 11 U.S.C. §§ 327, 330(a) and 503(b)(2) instead. The record reflects that these requirements were not met. Assuming, arguendo, that Latino was not a “professional person” and could correctly apply for an allowance of an administrative expense under 11 U.S.C. § 503(b)(1)(A), Latino has the burden of proving that the expenses were both actual and necessary to preserve the estate. Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). Because bankruptcy law demands equality of distribution absent a compelling justification for a different result and because administrative expenses are given a priority status by 11 U.S.C. § 507(a)(1), thereby depleting the funds available to general unsecured creditors, administrative expense claims are subject to careful scrutiny. Id. The terms “actual and necessary” are to be construed narrowly. First and most prominent, given the circumstances of this case and the nature and amount of fees requested, the Latino Application for fees and expenses appears inadequate and legally insufficient. The quality and quantity of information supplied justifying an award of fees and expenses is wholly deficient. See, Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983); In re Werth, 32 B.R. 442 (Bankr.D.Colo.1983); In re Land, Land v. First National Bank in Alamosa, 116 B.R. 798 published opinion of the Honorable John L. Kane, entered July 24, 1990. As the amounts allowed as administrative expenses under 11 U.S.C. § 503(b)(1)(A) must be “actual” and “necessary,” Latino cannot recover more than the amounts satisfactorily proved as such. Latino would be limited, in all likelihood, to a recovery of payroll and local" }, { "docid": "15227977", "title": "", "text": "the Bankruptcy Code nor the Bankruptcy Rules set forth a deadline for filing administrative expense claims; rather, each claim must be individually evaluated according to its circumstances. See, e.g., In re Southern Soya Corp., 251 B.R. 302, 311 (Bankr.D.S.C.2000). Here, there are several factors that warrant a finding that excusable neglect existed, and Countryhouse’s tardy claim should be allowed. The Debtor’s failure to include Countryhouse as a creditor on her petition was not within the reasonable control of Countryhouse. Although the Debt- or’s attorney asserts that Countryhouse was aware of the Debtor’s bankruptcy before the time to file claims expired, Coun-tryhouse received no actual notice of either the deadline to file claims or the Trustee’s motions to sell the Property. Because the Trustee indicated at the hearing that the Debtor and the Trustee were aware of Countryhouse’s potential claim at the time of the sale of the Property but did not pay the debt to Countryhouse at closing, the risk of prejudice to the Debtor is low. Furthermore, Countryhouse filed the instant motion approximately thirty days after the sale of the Property, which is not an unreasonable delay. Therefore, the court, in its discretion, will allow these tardy claims. Administrative Expense Claim under § 503(b) To be permitted as an administrative expense claim under § 503(b), the court must find, after notice and a hearing, that the entity claiming the administrative expense paid “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case,” and that the debt arose post-petition. 11 U.S.C. § 503(b)(1)(A). Bankruptcy courts must narrowly construe the terms “actual” and “necessary” to determine whether a creditor should be allowed an administrative expense claim. See, e.g., In re Merry-Go-Round Enters., 180 F.3d 149, 157 (4th Cir.1999); In re Packard Props., Ltd., 118 B.R. 61, 63 (Bankr.N.D.Tex.1990); Grantham v. Eastern Marine, Inc., 93 B.R. 752, 754 (Bankr.N.D.Fla.1988). The burden of proof to demonstrate that a claim is an administrative expense is on the movant. In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988). There is a split" }, { "docid": "5752337", "title": "", "text": "expenses. See Southern Ry. Co. v. Johnson Bronze Co., 758 F.2d 137, 141 (3d Cir.1985); In re Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 658 F.2d 1149, 1163 (7th Cir.), cert. denied sub nom., Railway Labor Executives Ass’n. v. Ogilvie, 455 U.S. 1000, 102 S.Ct. 1632, 71 L.Ed.2d 867 (1982); In re Philadelphia Mortgage Trust, 117 B.R. 820, 825 (Bankr.E.D.Pa.1990); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989); In re SMB Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987) (conferral of administrative expense priority where not clearly entitled under the Code dilutes priorities scheme prescribed by Congress). The burden of proving entitlement to priority payment as an administrative expense therefore rests with the party requesting it. See Woods v. City Nat. Bank & Trust Co., 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). The Bankruptcy Code permits top priority payment of “actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case,” 11 U.S.C. § 503(b)(1)(A), as a means of enabling the debtor estate to acquire the requisite post-petition credit with which to preserve itself after the filing of the petition. Preservation of the estate includes protection of the assets of the estate, as well as postpetition operation of the business of the debtor. See, e.g., In re Mammoth Mart, Inc., 536 F.2d 950, 954 (1st Cir.1976); In re Jartran, Inc., 732 F.2d 584, 586 (7th Cir.1984); In re Pierce Coal & Constr., Inc., 65 B.R. 521, 530 (Bankr.D.W.Va.1986). As a general rule, a request for priority payment of an administrative expense pursuant to Bankruptcy Code § 503(a) may qualify if (1) the right to payment arose from a postpetition transaction with the debtor estate, rather than from a prepetition transaction with the debtor, and (2) the consideration supporting the right to payment was beneficial to the estate of the debtor. See In re Mammoth Mart, Inc., 536 F.2d at 954; see also Jartran, 732 F.2d at 587. There is no dispute that Woburn’s request" }, { "docid": "5179105", "title": "", "text": "services rendered after the commencement of the case,” 11 U.S.C. § 503(b)(1)(A) (1989), the terms “actual and necessary” are construed narrowly, and Walton has the burden of proving that the expenses were necessary to preserve the estate, Patch Graphics, 58 B.R. at 745. Similarly, under § 503(b)(3)(D), which also includes as administrative expenses “the actual, necessary expenses ... incurred by ... a creditor ... in making a substantial contribution in a case under chapter 9 or 11 of this title,” 11 U.S.C. § 503(b)(3)(D) (1989), Walton must prove that the expenses resulted in a significant and tangible benefit to the estate, In re Lister, 846 F.2d 55, 57 (10th Cir.1988); D.W.G.K. Restaurants, 84 B.R. at 689; Patch Graphics, 58 B.R. at 745. Walton seeks payment under both of these provisions. The Seventh Circuit Court of Appeals faced a similar set of facts when it decided to give administrative priority status to the claimant’s expenses in Park Terrace Townhouses v. Wilds, 852 F.2d at 1019. In that case, the claimant took possession of debt- or’s property and performed services as property manager and maintenance supervisor pursuant to an agreement under which he would eventually purchase the property. The claimant removed the debt- or’s resident manager and hired a staff to perform his activities; he maintained, upgraded and remodeled the rental units; and he instituted a marketing program which significantly increased occupancy rates and monthly income. The Bankruptcy Court awarded $21,750.00 to the claimant as an administrative expense, representing 870 hours of work at $25.00 per hour, and the District and Circuit Courts affirmed the award on appeal. Id. There are two distinctions between that case and the one presently at bar which lead this Court to a different conclusion. First, in this case Walton is not asking for compensation in the nature of wages for services performed, unlike the claimant in Park Terrace Townhouses. Instead, it wants reimbursement for the “out-of-pocket” expenses of its employees, such as taxi and airplane fares, dining and entertainment tabs, and hotel charges. While the language of § 503(b)(1)(A) clearly contemplates the reimbursement of wages and" }, { "docid": "5179104", "title": "", "text": "employees may have been members of a professional community, they were not hired to assist D’Lites in handling the bankruptcy proceeding. Instead, their function was to try to keep the ailing company in operation by performing everyday functions in the ordinary course of business. Accordingly, their employment was not subject to the Court’s approval. The same “hands-off” treatment of transactions in the ordinary course of business may not be applied to the allowance of administrative expenses. Because bankruptcy law demands equality of distribution absent a compelling justification for a different result, and because administrative expenses are given priority status by § 507(a)(1) and therefore deplete the funds available to general unsecured creditors, In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988), In re Amfesco Industries, Inc., 81 B.R. 777, 780 (Bankr.E.D.N.Y.1988), administrative expense claims must be given strict scrutiny, In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wisc.1986). Thus, under § 503(b)(1)(A), which includes as allowed administrative expenses “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case,” 11 U.S.C. § 503(b)(1)(A) (1989), the terms “actual and necessary” are construed narrowly, and Walton has the burden of proving that the expenses were necessary to preserve the estate, Patch Graphics, 58 B.R. at 745. Similarly, under § 503(b)(3)(D), which also includes as administrative expenses “the actual, necessary expenses ... incurred by ... a creditor ... in making a substantial contribution in a case under chapter 9 or 11 of this title,” 11 U.S.C. § 503(b)(3)(D) (1989), Walton must prove that the expenses resulted in a significant and tangible benefit to the estate, In re Lister, 846 F.2d 55, 57 (10th Cir.1988); D.W.G.K. Restaurants, 84 B.R. at 689; Patch Graphics, 58 B.R. at 745. Walton seeks payment under both of these provisions. The Seventh Circuit Court of Appeals faced a similar set of facts when it decided to give administrative priority status to the claimant’s expenses in Park Terrace Townhouses v. Wilds, 852 F.2d at 1019. In that case, the claimant took possession of debt- or’s property" }, { "docid": "18767869", "title": "", "text": "1982). Since an administrative expense constitutes a priority claim, any recovery must be subject to strict scrutiny by the court. Priority statutes are strictly construed. Standard Oil Company v. Kurtz, 330 F.2d 178, 180 (8th Cir.1964). The burden of proof is on the party making the administrative claim. Patch Graphics, 58 B.R. at 745. See, Woods v. City National Bank and Trust Company, 312 U.S. 262, 268, 61 S.Ct. 493, 497, 85 L.Ed. 820 (1941). The term “actual” and “necessary” must be narrowly construed to preserve the estate. Patch Graphics, 58 B.R. at 745. The movant bears a heavy burden in requesting compensation under § 503(b). While “substantial contribution” does not require a contribution that leads to confirmation of a plan the phrase clearly requires contribution which provides tangible benefits to the bankruptcy estate and the other unsecured creditors. Thus to the extent that the “substantial contribution” requirement adds anything to the requirements discussed previously, it is to increase the burden of proof which a claimant for administrative expense must bear. Patch Graphics, 58 B.R. at 746. Turning to the bases for the Chelios’ claim, the services rendered by counsel for the Chelios’ were primarily for the benefit of the Chelios’. Furthermore, the services satisfied neither the “substantial contribution” nor the “actual and necessary” requirements of § 503(b). The first area for which the Chel-ios’ request compensation is for their general participation in the case. This area includes attendance at hearings, review of proceedings, review of debtor’s counsel’s billings, participation in plan confirmation and proceedings, participation in the debate regarding the reasonable value of the various assets sold and negotiations among the creditors. While there can be no doubt that such participation does make a contribution, these actions are both self-interested and duplicative. The Chelios’ have alleged no tangible benefits from their general participation. Furthermore, there were numerous other participants in these proceedings, all of which made similar contributions. Extensive participation, alone, is not sufficient to compel compensation under § 503(b). In re Ace Finance Co., 69 B.R. 827 (Bankr.N.D.Ohio 1987). The next area in which the Chelios’ allege that" }, { "docid": "12671601", "title": "", "text": "on the issue of whether or not the claims reflect actual value conferred on the estate. United, 851 F.2d at 162. If the claims did, the United court said, they would be entitled to priority as administrative expenses; however, the claims would be limited to the “actual value conferred” amount. Id. at 163. These cases, taken together, seem to support the idea that the Sixth Circuit is in favor of granting administrative priority to claims which satisfy the statutory and caselaw requirements. Before ruling on this issue in relation to MHA’s motion, however, it is necessary to make a brief investigation of the procedural aspects of an administrative expense request. The Tennessee bankruptcy case of In re Butcher, 108 B.R. 634 (Bankr.E.D.Tenn.1989) provides a thorough overview of the relevant caselaw and serves as an excellent foundation for this analysis. The first principle announced in Butcher is taken from the case of In re Dakota Indus., Inc., 31 B.R. 23, 26 (Bankr.D.S.D.1983). This case established the principle that a bankruptcy court has broad discretion in determining whether or not a claim is entitled to administrative priority. Butcher, 108 B.R. at 636. Along with this discretion, however, goes the mandate taken from Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986), that bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary.” Butcher, 108 B.R. at 636-637. The next rule the court introduces is the one handed down in In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988). This holding states that the party making the motion for payment of administrative expenses has the burden of showing that the claim is in fact entitled to such priority. Butcher, 108 B.R. at 637. The fourth and final instruction Butcher gives is that within this burden of proof is the requirement that the movant show the reasonableness and necessity of the expense and also the benefit conferred on the estate. Butcher, 108 B.R. at 637 citing In re Hendersonville Bowling Center, Inc., 65 B.R. 963, 965 (Bankr.M.D.Tenn.1986). Keeping the Butcher mandates in mind, it is now necessary to inquire as to" }, { "docid": "4730804", "title": "", "text": "Heitzig Plaintiffs I am treating these applications together because they are based on like statutory provisions; i.e., 11 U.S.C. §§ 503(b)(3)(A) and 503(b)(4). Section 503 of title 11 provides that, under certain circumstances, administrative expenses may be allowed by the court. These expenses receive first priority of payment in a bankruptcy case. See 11 U.S.C. § 507(a)(1). The expenses of a petitioning creditor in an involuntary bankruptcy proceeding are included as administrative expenses pursuant to 11 U.S.C. § 503(b)(3)(A). That section provides in pertinent part: (b) After notice and a hearing, there shall be allowed administrative expenses, other than claims allowed under 502(f) of this title, including— * * * * * * (3) the actual, necessary expenses, other than compensation and reimbursement specified in paragraph (4) of this subsection incurred by— (A) a creditor that files a petition under section 303 of this title. Id. In addition, under section 503(b)(4) a petitioning creditor may receive compensation for its attorneys fees and costs incurred by the attorney. Section 503(b)(4) grants administrative expense treatment to: (4) reasonable compensation for professional services rendered by an attorney or accountant of an entity whose expense is allowable under paragraph (3) of this subsection, based on the time, the nature, the extent, and the value of such services, and the cost of comparable services other than in a case under this title, and reimbursement for actual, necessary expenses incurred by such attorneys or accountant. 11 U.S.C. § 503(b)(4). It is well settled that these statutory provisions must be narrowly construed, in order to keep fees and administrative expenses at a minimum so as to preserve the estate for the benefit of all creditors. In re OPM Leasing Services, Inc., 23 B.R. 104, 121 (Bktcy.S.D.N.Y.1982). Applicants under section 503(b)(3) and (4) have the burden of establishing their entitlement to an award by a preponderance of the evidence. In re 1 Potato 2, Inc., 71 B.R. 615, 618 (Bktcy.D.Minn.1987); In re Patch Graphics, 58 B.R. 743, 746 (Bktcy.W.D.Wisc.1986). As with all fee applications in bankruptcy cases, the applications must be supported by detailed time sheets and records" }, { "docid": "3560233", "title": "", "text": "administrative expenses ... including— (1)(A) the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case[.] 11 U.S.C.A. § 503 (West 1979 and Supp. 1989). The court has broad discretion to determine whether a claim for an administrative expense is, in actuality, an administrative expense. In re Dakota Industries, 31 B.R. 23, 26 (Bankr.D.S.D.1983). Bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary.” Grantham v. Eastern Marine, Inc., 93 B.R. 752, 754 (Bankr.N.D.Fla.1988); In re Sinclair, 92 B.R. 787, 788 (Bankr.S.D.Ill.1988); In the Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986). The burden of proof to demonstrate that the claim is an administrative claim is upon the movant. In re Sinclair, 92 B.R. at 788; Patch Graphics, 58 B.R. at 745. The movant must also show “that the expenses were reasonable, necessary and benefited the estate.” In re Hendersonville Bowling Center, Inc., 65 B.R. 963, 965 (Bankr.M.D.Tenn.1986). The Patch Graphics court stated that “the expense in question must be shown to have been 'actual and necessary.’ ” 58 B.R. at 745. Courts have not spoken with unanimity when determining whether or not to allow a claim for an administrative expense under § 503(b)(1)(A). As hereafter discussed, one approach looks not to any actual benefit received by the estate, but to the estate’s ownership or possession of the property. A different approach allows an administrative expense claim once the creditor demonstrates that a benefit has accrued to the estate. A third approach, consistent with the second, denies the creditor’s claim when the services or expenses provided have not benefited the estate. Finally, no administrative expense claim is allowable where the movant incurs the expense substantially in its own self-interest. A. Administrative Expense Premised Upon Debtor’s (Trustee’s) Possession Of The Property The first approach holds that where the debtor or trustee holds property, e.g., leased property, during the pendency of the bankruptcy case, the monies due the creditor should be allowed as an administrative expense. In such cases, the amount of the claim" }, { "docid": "16453168", "title": "", "text": "780 (Bankr.E.D.Tenn.1989) (bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary”); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989) (FOX, J.) (since the allowance of priority claims reduces the amount of the estate’s funds available to prepetition creditors, claims constituting administrative expenses are narrowly construed); In re S.M.B. Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987), quoting In re Cascade Oil Co., 51 B.R. 877, 881 (Bankr.D.Kan.1985) (if a priority is granted to a creditor who is not clearly entitled to it, “it dilutes the value of the priority for those creditors Congress intended to prefer”); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986) (since an administrative expense constitutes a priority claim, any recovery must be subject to strict scrutiny by the court; priority statutes are strictly construed); and In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 897-98 (Bankr.E.D.Pa.1987) (Section 503(b)(1)(A) must be read narrowly; liberal allowances of administrative expenses will exhaust the debtor’s scarce resources). See also, e.g., Leedy II, supra, 111 B.R. at 491; In re D.W.G.K. Restaurants, Inc., 84 B.R. 684, 689 (Bankr.S.D.Cal.1988); In re American International Airways, Inc., 77 B.R. 490, 494 (Bankr.E.D.Pa.1987); and In re Rife, 71 B.R. 129, 131 (Bankr.W.D.Va.1987). Thus, we can agree with the statement of the court in In re York International Building, Inc., 527 F.2d 1061, 1068 (9th Cir.1975), that [e]xtravagant allowance of fees and other costs of administration in bankruptcy estates have long been denounced as “crying evils.” In re Realty Associates Securities Corp. v. O’Connor, [295 U.S. 295, 299, 55 S.Ct. 663, 665, 79 L.Ed. 1446 (1935)]. A creditor’s characterization of its claim as an administrative expense entitled to priority is not determinative of the claim’s status. Even if no objections to the claimed priority status are raised, the bankruptcy court must determine, in its discretion, the priority of the claim. Guaranty National Insurance Co. v. Greater Kansas City Transp., Inc., 90 B.R. 461, 462-63 (D.Kan.1988). The “burden of proving entitlement to a priority is on the person claiming priority.” Amarex, supra, 853 F.2d at 1530, quoting O.P.M. Leasing, supra, 60" }, { "docid": "16453167", "title": "", "text": "§ 503(b), it is necessary to begin with the undisputed precept that because the presumption in bankruptcy eases is that the debtor’s limited resources will be equally distributed among his creditors, statutory priorities are narrowly construed. Joint Industry Board v. United States, 391 U.S. 224, 228 [88 S.Ct. 1491, 1493, 20 L.Ed.2d 546] ... (1968); In re United Merchants & Manufacturers, Inc., 597 F.2d 348, 349 (2d Cir.1979); In re Mammoth Mart, Inc., 536 F.2d 950, 953 (1st Cir.1976). “[I]f one claimant is to be preferred over others, the purpose should be clear from the statute.” Trustees of the Amalgamated Insurance Fund v. McFarlin’s, Inc., 789 F.2d 98, 100-01 (2d Cir.1986). See In re Baldwin-United Corp., 43 B.R. 443, 451 (S.D.Ohio 1984), quoting In re O.P.M. Leasing Services, Inc., 23 B.R. 104, 121 (Bankr.S.D.N.Y.1982) (the “actual” and “necessary” provision of the statute “must be narrowly construed, in order to keep fees and administrative expenses at a minimum so as to’ preserve the estate for the benefit of all creditors”); In re Moore, 109 B.R. 777, 780 (Bankr.E.D.Tenn.1989) (bankruptcy courts should strictly scrutinize claims and narrowly construe the terms “actual” and “necessary”); In re Massetti, 95 B.R. 360, 363 (Bankr.E.D.Pa.1989) (FOX, J.) (since the allowance of priority claims reduces the amount of the estate’s funds available to prepetition creditors, claims constituting administrative expenses are narrowly construed); In re S.M.B. Holdings, Inc., 77 B.R. 29, 32 (Bankr.W.D.Pa.1987), quoting In re Cascade Oil Co., 51 B.R. 877, 881 (Bankr.D.Kan.1985) (if a priority is granted to a creditor who is not clearly entitled to it, “it dilutes the value of the priority for those creditors Congress intended to prefer”); In re Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986) (since an administrative expense constitutes a priority claim, any recovery must be subject to strict scrutiny by the court; priority statutes are strictly construed); and In re Grant Broadcasting of Philadelphia, Inc., 71 B.R. 891, 897-98 (Bankr.E.D.Pa.1987) (Section 503(b)(1)(A) must be read narrowly; liberal allowances of administrative expenses will exhaust the debtor’s scarce resources). See also, e.g., Leedy II, supra, 111 B.R. at 491; In re" } ]

[ { "docid": "22564786", "title": "", "text": "as an officer,” App. at 995. This was clearly the County Attorney’s theory of the case, as he made similar statements to the trial judge. See App. at 98-102, 779-81. All of Dunton’s claims were dismissed by the court as meritless except for the section 1983 claim against Robert Pfeiffer and the state law claims of battery against Robert Pfeiffer and malicious prosecution against Angela Pfeiffer. The jury found Robert Pfeiffer not liable under section 1983, but awarded $10,000 compensatory and $10,000 punitive damages on the battery claim. Angela Pfeiffer was held liable for $5,000 compensatory and $20,000 punitive damages for malicious prosecution. Robert Pfeiffer then made a series of post-trial motions relating to the County Attorney’s conflict of interest. While the district court acknowledged that there was a conflict, it denied the motions on the ground that Pfeiffer was not prejudiced thereby. It stated that even if Pfeiffer had been shown to be acting under color of state law, damages would still have been awarded for the unjustified battery, and that punitive damages would also have been awarded in any event. See 580 F.Supp. 974, 975-76 (E.D.N.Y.1983). II Robert Pfeiffer appeals on the ground that the Suffolk County Attorney failed to represent his interest adequately because of the attorney’s conflicting representation of Suffolk County. Specifically, Officer Pfeiffer claims that it was in his interest to assert his immunity from section 1983 liability based on good faith actions within the scope of his employment. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 & n. 30, 102 S.Ct. 2727, 2738-39 & n. 30, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Pfeiffer contends that the attorney undermined the good faith immunity defense by repeatedly stating that Pfeiffer acted not as a police officer but as an “irate husband.” Municipalities commonly provide counsel for their employees and themselves when both municipality and employee are sued. The Suffolk County Attorney’s representation of Officer Pfeiffer here was mandated by statute. See Suffolk County Local Law No. 30 (1981), reprinted in App. at 1325-28." } ]

[ { "docid": "22564785", "title": "", "text": "might create a conflict came in a form letter from the County Attorney to Robert Pfeiffer dated August 25, 1981 suggesting that because “plaintiff has alleged that [Pfeiffer] acted in [his] personal capacity and/or has demanded punitive damages” and because of possible counterclaims, Pfeiffer should contact private counsel “for such additional advice as may be appropriate.” App. at 1199-200. Angela Pfeiffer retained her own attorney. The County Attorney’s answer to Dun-ton’s complaint included an affirmative defense that Robert Pfeiffer was acting in good faith pursuant to his official duties and responsibilities. However, it was the last time that the defense contended that Pfeiffer was acting in good faith as a police officer. The County Attorney told the jury in opening statements that Pfeiffer “acted as a husband, not even as an officer,” App. at 135. Similarly, he told the jury in closing statements that it was obvious Pfeiffer “was acting as an irate husband rather than a police officer,” App. at 989, and that he acted “with the human spirit as a husband, not really as an officer,” App. at 995. This was clearly the County Attorney’s theory of the case, as he made similar statements to the trial judge. See App. at 98-102, 779-81. All of Dunton’s claims were dismissed by the court as meritless except for the section 1983 claim against Robert Pfeiffer and the state law claims of battery against Robert Pfeiffer and malicious prosecution against Angela Pfeiffer. The jury found Robert Pfeiffer not liable under section 1983, but awarded $10,000 compensatory and $10,000 punitive damages on the battery claim. Angela Pfeiffer was held liable for $5,000 compensatory and $20,000 punitive damages for malicious prosecution. Robert Pfeiffer then made a series of post-trial motions relating to the County Attorney’s conflict of interest. While the district court acknowledged that there was a conflict, it denied the motions on the ground that Pfeiffer was not prejudiced thereby. It stated that even if Pfeiffer had been shown to be acting under color of state law, damages would still have been awarded for the unjustified battery, and that punitive damages would" }, { "docid": "15715998", "title": "", "text": "search the record in an effort to determine whether there exists dormant evidence which might require submission of the case to a jury.” Gross, 53 F.3d at 1546 (internal quotation marks and citation omitted). We thus AFFIRM the district court’s grant of summary judgment on these issues, C. Dunton Conflicts Finally, Plaintiffs argue the district court erred by refusing to disqualify Defendants’ attorney. They claim defense counsel’s decision not to settle for $60,000 created a conflict of interest between the State and the individual defendants in their individual capacities. We review a district court’s decision on a motion to disqualify counsel for abuse of discretion. McEwen v. City of Norman, 926 F.2d 1539, 1550 (10th Cir.1991). Plaintiffs’ claim is based on Dunton v. County of Suffolk, 729 F.2d 903, 907 (2d Cir.1984), in which one attorney defended both a governmental entity and an individual defendant in his individual capacity in a § 1983 case. The County’s defense — that its co-defendant police officer acted outside the scope of his official duties — undermined the police officer’s good faith immunity defense, thereby creating a conflict of interest between the attorney’s two clients. See id. Neither plaintiffs nor defendants’ counsel raised the conflict, although the Second Circuit noted that even plaintiffs counsel “should ... have been aware of the problem and should have called it to the attention of the court.” Id. at 909. In the end, the Second Circuit vacated the judgment against the police officer defendant and remanded the case for a new trial because “the trial court had a duty to inform [defendant] of the conflict.” Id. at 909. A degree of skepticism is in order when one party seeks disqualification of opposing counsel based on allegedly deficient representation of the opposing party. In Dunton, the defendant benefitted wheh the court disqualified his defense counsel because the result of the disqualification was reversal of a decision in plaintiff’s favor; we are reluctant to allow Plaintiffs to employ a similar motion to reverse a decision in Defendants’ favor. And in any event, Plaintiffs have failed to present any evidence suggesting" }, { "docid": "2629302", "title": "", "text": "not decide today whether an attorney’s gross, willful negligence might conceivably constitute extraordinary circumstances warranting Rule 60(b)(6) relief for a client against whom a default judgment has been entered. Defendants’ own neglect makes the issue moot. As this court said in Inryco v. Metropolitan Eng. Co., 708 F.2d 1225, 1234 (7th Cir.1983), allowing relief under Rule 60(b)(6) requires a “diligent, conscientious client.” Neither defendant met that test. Indeed, their argument can best be described as a desperate hindsight effort to shift their responsibility to their lawyer; it verges on the frivolous. In addition to asserting that they ought not be charged with their former counsel’s derelictions, Smith and Frierson allege that a conflict of interest between the Village and themselves made the joint representation by the Village’s attorney improper and exposed them to serious prejudice. No conflict existed, and the district court correctly rejected their argument. When conflicting interests of a serious nature are at stake among joint parties, simultaneous representation by counsel undermines the fairness of the judicial process. Because of the dire consequences that joint representation may bring, a trial judge must be ever sensitive to that possibility and act accordingly, even absent an objection. Whether the possibility of a conflict does in fact exist requires an analysis of the respective interests of the joint parties. In arguing that a conflict of interest existed between the Village and themselves, so as to make joint representation improper, the movants largely rely on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984). We are convinced that Dun-ton is readily distinguishable from the case before us. In Dunton, the plaintiff brought a section 1983 suit against a police officer and his employer, the County of Suffolk, State of New York. An altercation had developed between plaintiff Dun-ton and Pfeiffer, a police officer, after the latter found his wife in a car with the plaintiff, and Mrs. Pfeiffer claimed that Dunton had made improper advances. Id. at 905. Pfeiffer threw Dunton out of the car and struck him repeatedly. The County Attorney represented both Pfeiffer and the County of Suffolk at" }, { "docid": "22564790", "title": "", "text": "affecting attorney’s presentation of a case), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). This conflict surfaced when the County Attorney stated that Pfeiffer was not acting under color of state law but rather as an “irate husband.” This was a good defense for the county, which eventually was dismissed from the action. However, it was not in the best interest of Pfeiffer, who was ultimately found liable in his individual capacity. Pfeiffer’s failure to object to the multiple representation before or during trial did not constitute a waiver. As a layman, he could not be expected to appreciate his need to prove a good faith defense. Furthermore, he was never advised that his counsel would take positions directly contrary to his interest. The County Attorney’s multiple representation in this case was inconsistent with his professional obligation to Officer Pfeiffer. See Hafter v. Farkas, 498 F.2d 587, 589 (2d Cir.1974). It was also inconsistent with Canons 5 and 9 of the ABA Code of Professional Responsibility. A violation of Canons 5 and 9 of the Code, which call for exercising independent judgment on behalf of a client and avoiding any appearance of impropriety, provides ample grounds for disqualifying an attorney. Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979). As soon as the County Attorney began to undermine Officer Pfeiffer’s good faith immunity defense by stating that Pfeiffer acted as an “irate husband” and not as a police officer, he was not only failing to act as a conscientious advocate for Pfeiffer, but was acting against Pfeiffer's interest. The seriousness of this conflict made disqualification appropriate. Shadid v. Jackson, 521 F.Supp. at 88-90. Where a conflict is serious and disqualification might be warranted, the district court is under a duty to ensure that the client fully appreciates his situation. This Court has stated that “[w]hen a potential or actual conflict of interest situation arises, it is the court’s duty to ensure that the attorney’s client, so involved, is fully aware of the nature of the conflict and understands the potential threat to" }, { "docid": "4925022", "title": "", "text": "municipality chooses to reduce its legal costs by providing joint representation, it is necessary that the municipality take steps to reduce or eliminate the potential conflict of interest. Because Conn. Gen.Stat. § 7-101a already imposes a duty upon the municipality to hold its officers and employees harmless, the conflict of interest can be eliminated by the municipality waiving the defenses to liability that are permitted under § 7-101a. In the instant case the municipality and the individual defendants have filed a joint answer admitting that the officers were acting within the scope of their duties. See note 1, supra. However, the municipality must provide a waiver of all rights it may have against the employee for reimbursement of legal expenses. The municipality must also agree to pay any judgment entered against the officer whether or not his actions are found to be willful, wanton, malicious or ultra vires. By complying with these requirements the municipality will remove any potential conflicts of interest, at least from a financial viewpoint, between the jointly represented parties. III. Informed Consent When co-defendants in a § 1983 action are represented by the same counsel, the trial court is obligated to ascertain that notice of any potential conflict of interest is provided to affected litigants. Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir.1984). In Dunton, the court found disqualification appropriate because the County Attorney, defending both the police officers and their county employer, did in fact undermine the officer’s good faith immunity defense at trial. The court did not hold that disqualification is mandated in all cases of joint representation and inherent conflict, but rather held that a district court has a duty to ensure that defendants potentially affected by such a conflict are fully cognizant of the circumstances. Id. at 908. In so holding, the Dunton court followed a prior Second Circuit decision in In re Taylor, 567 F.2d 1183 (2d Cir.1977). The Taylor court rejected a blanket “single representation” rule which would require separate representation in all instances of potential or actual conflict. Rather, the court held that, while affected clients" }, { "docid": "23176949", "title": "", "text": "other grounds, 748 F.2d 69 (2d Cir.1984), in which this Court required a new trial due to a conflict of interest arising from an attorney’s joint representation of a county and its officers in an action brought under Section 1983. Dunton involved a lawsuit against a county and an individual county police officer who had physically assaulted the plaintiff upon finding him sitting in a car with the officer’s wife. At trial, the same attorney represented both the county and the individual officer and argued that, at the time of the alleged violation, the officer had acted “as an ‘irate husband’ ” rather than within the scope of his employment as a police officer. Id. at 907-08. We noted that this line of argument served the county’s interests, but was a poor defense for the officer, because “[a] municipality may avoid liability by showing that the employee was not acting within the scope of his official duties” while “[t]he employee, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties.” Id. at 907. If the employee can show that the employee’s actions were pursuant to an official policy, the employee can shift part of the liability to the municipality, and if the employee can also successfully assert a defense of qualified immunity, the entire liability may rest on the municipality because it cannot assert such a defense. Id. This Court concluded that the attorney’s conflict of interest had prejudiced the individual officer while potentially providing “an improper benefit to the municipal defendants,” and remanded the case for a new trial. Id. at 910. In so holding, we noted that the potential for such a conflict of interest is inherent in Section 1983 cases. Id. at 907. In Dunton, however, this court declined to create a per se rule requiring disqualification whenever a municipality and its employees are jointly represented in a Section 1983 case. Id. at 908 n. 4. Rather, a case-by-case determination is required, and it is clear that the facts of this case do not rise to" }, { "docid": "4925023", "title": "", "text": "Consent When co-defendants in a § 1983 action are represented by the same counsel, the trial court is obligated to ascertain that notice of any potential conflict of interest is provided to affected litigants. Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir.1984). In Dunton, the court found disqualification appropriate because the County Attorney, defending both the police officers and their county employer, did in fact undermine the officer’s good faith immunity defense at trial. The court did not hold that disqualification is mandated in all cases of joint representation and inherent conflict, but rather held that a district court has a duty to ensure that defendants potentially affected by such a conflict are fully cognizant of the circumstances. Id. at 908. In so holding, the Dunton court followed a prior Second Circuit decision in In re Taylor, 567 F.2d 1183 (2d Cir.1977). The Taylor court rejected a blanket “single representation” rule which would require separate representation in all instances of potential or actual conflict. Rather, the court held that, while affected clients should be fully informed of possible adverse consequences of joint representation, they should also be free to retain the counsel of their choice subsequent to receiving the requisite information. Id. at 1191. It is the responsibility of this court to ascertain that defendants Keyes and Da-Costa have the knowledge and understanding necessary to make an informed choice of counsel. As a means of ensuring that the litigants have such knowledge and understanding, the defense attorney shall provide this court with an affidavit from each of the individual defendants stating that he has been given adequate notice of the conflict inherent in joint representation, and that he has chosen to continue to retain the municipality’s attorney as his counsel. The officers must also be informed of their right, under Conn.Gen.Stat. § 7-101a, to have the municipality pay for their defense if they choose to employ separate attorneys. However, if they choose to employ separate attorneys the municipality will not be required to waive its right to seek reimbursement under § 7-101a(b). IV. Conclusion A potential conflict" }, { "docid": "9845395", "title": "", "text": "since the jury never had a chance to consider the officer’s good faith immunity defense, the officer did not receive the fair trial to which he was entitled. Accordingly, the court reversed the judgment against the officer and ordered a new trial. Id. at 910. Thus far, the Second Circuit is the only appellate court to have addressed this issue directly. But see Van Ooteghem v. Gray, 628 F.2d 488, 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982) (serious conflict of interest could exist in future § 1983 actions in which one attorney represents both a county and a county official individually). In Coleman v. Frierson, 607 F.Supp. 1566 (N.D.Ill.1985), defendants moved for relief from a default judgment claiming counsel’s representation of them gave rise to a conflict of interest warranting such relief under the rationale of Dunton. Judge Shadur concluded there was no clear basis for reading Dunton as creating a universal per se conflict rule. Rather, the court construed Dunton as reasserting “ ‘the need for sensitivity to the risk of conflict throughout the course of a lawsuit involving multiple representation’ ... especially in cases — like those proceeding under Monell —where the differing interests among clients may not be immediately apparent.” Id. at 1572 (quoting the court’s earlier opinion in Clay v. Doherty, 608 F.Supp. 295, 305 (N.D.Ill.1985)). The court indicated that whenever an actual conflict arises, the judge and the parties have the joint responsibility to guard any threatened interests. Id. at 1572. In denying defendant’s motion, the court noted that even if the multiple representation created a risk of conflict, no conflict was ever realized. Id. at 1573. Other trial courts have encountered this problem in the context of motions to disqualify. See, e.g., Clay v. Doherty, supra (“In the absence of case law mandating a broad reading of Dunton, this court views it not as a modification of the governing principles under DR 5-105, but rather as" }, { "docid": "4925015", "title": "", "text": "RULING ON PLAINTIFF’S MOTION TO DISQUALIFY COUNSEL ELLEN B. BURNS, District Judge. The events giving rise to this suit, brought under 42 U.S.C. § 1983 and Connecticut state law, occurred on February 1, 1983, at a roller skating rink in the Town of East Haven. Plaintiff, Paul Manganella, alleges that defendant police officers, Thomas Keyes, Jr. and Thomas Dacosta “acting within the scope of their employment” and “under color of their authority as police officers and as employees of the defendant Town of East Haven,” beat him and subsequently unlawfully arrested him. Plaintiff sues Keyes and DaCosta in their individual and official capacities and also sues the Town of East Haven (the Town). All the defendants in this action are represented by the same attorney. Plaintiff has moved to disqualify defense counsel from continued joint representation claiming an inherent conflict of interest between the defense of the police officers in their individual capacities and the defense of the municipality. The basis of plaintiff’s motion is Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984) in which the court ordered disqualification of the County Attorney, who acted as defense counsel for both the police officers and their county employer, after actual conflict surfaced at trial. Plaintiff asserts that such multiple representation violates the Code of Professional Responsibility: Canon 5, requiring an attorney to exercise independent judgment on behalf of a client; Canon 4, requiring an attorney to preserve the confidences of a client; and Canon 9, requiring an attorney to avoid even the appearance of impropriety. For reasons set forth below, the motion to disqualify is granted unless the Town complies with the requirements of this ruling within thirty days. To protect the interests of defendant police officers jointly represented with their municipal employer, the municipality shall provide the court with a waiver of its right to reimbursement for the costs of the defense under Conn. Gen.Stat. § 7-lOla. In addition, the attorney for the joint defendants shall submit affidavits of the defendant police officers that they have been given notice of the potential conflict arising from the joint representation" }, { "docid": "23176948", "title": "", "text": "on which to affirm the judgment entered by the district court. Because our disposition of this appeal would not be affected by any possible resolution of the state action question, we need not reach the issue. See Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir.2005) (“Naturally a court need not decide issues whose resolution it has determined can have no possible effect on the ultimate disposition of the case.”); see also Forsyth v. Fed’n Employment & Guidance Serv., 409 F.3d 565, 571 (2d Cir.2005) (declining to interpret a Local Rule of Civil Procedure where no interpretation of the rule would result in reversal). 3.Potential Conflict of Interest Balsámico argues that he is entitled to a new trial because Gorman’s joint representation of him and the County through the initial appeal in this case prejudiced him because of an inherent conflict of interest between Balsamico’s interests and those of the County. He relies principally on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984), amended on other grounds, 748 F.2d 69 (2d Cir.1984), in which this Court required a new trial due to a conflict of interest arising from an attorney’s joint representation of a county and its officers in an action brought under Section 1983. Dunton involved a lawsuit against a county and an individual county police officer who had physically assaulted the plaintiff upon finding him sitting in a car with the officer’s wife. At trial, the same attorney represented both the county and the individual officer and argued that, at the time of the alleged violation, the officer had acted “as an ‘irate husband’ ” rather than within the scope of his employment as a police officer. Id. at 907-08. We noted that this line of argument served the county’s interests, but was a poor defense for the officer, because “[a] municipality may avoid liability by showing that the employee was not acting within the scope of his official duties” while “[t]he employee, by contrast, may partially or completely avoid liability by showing that he was acting within" }, { "docid": "23650228", "title": "", "text": "and vicarious liability. Imposing such a result would, however, be troubling under the circumstances of this case. In the damage interrogatories on Ro-dick’s other claims, the jury assessed different amounts of damages against the individual officers. Accordingly, it is a reasonable inference that with respect to malicious prosecution, the jury may have intended that the officers be held separately, but equally, liable. If so, then the total damages that the jury intended for Rodick to recover from the officers on the malicious prosecution claim would have been $220,000. Moreover, because the jury was never told that the City’s liability could not be assessed separately from that of the officers, and because it entered $550,000 as the damage amount against the City, it may very well have intended that Rodick receive $770,000. Because we believe that appellate resolution of this question would require speculation as to the jury’s intention, we remand for a new trial limited to the issue of damages for malicious prosecution. Accordingly, we do not reach the City’s alternative argument that the malicious prosecution damages were excessive as a matter of law. III. Conflict of Interest Relying on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.), amended on other grounds, 748 F.2d 69 (2d Cir.1984), the police officers claim that the district court erred.in rejecting their (concededly timely ) post-trial motion for a new trial because their lawyer was also representing the City, resulting in an improper conflict of interest. In Dunton, a police officer happened upon his wife and a co-worker (Dunton) apparently sharing an intimate moment in a car, dragged Dunton out of the car, and beat him. Subsequently, Dunton brought a § 1983 claim against the officer and the Suffolk County Police and, at trial, a county attorney represented both defendants. In considering the officer’s argument that this constituted an improper conflict, we noted that because municipalities may be held liable under § 1983, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), joint representation of municipalities and their employees presents a possibility for conflict" }, { "docid": "23650230", "title": "", "text": "of interest because “[a] municipality may avoid liability by showing that the employee was not acting within the scope of his official duties” and “[t]he employee, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties.” Dunton, 729 F.2d at 907. We found that the potential for conflict had become manifest because the county attorney had opened to the jury by saying that the officer “acted as a husband, not even as an officer,” and closed by saying that it was obvious that the officer .“was acting as an irate husband.” Because of this manifest, serious and direct conflict and because the officer was never advised that his attorney would take positions contrary to his own, the district court had a duty to warn the officer about the conflict and its failure to do so was error. Id. at 908. Dunton is distinguishable. Here, both the City and the officers argued that the officers were acting in their official capacity. Furthermore, the officers concede that their trial counsel advanced and argued all possible defenses available to them, including the qualified immunity defense, but contend that counsel’s successful motion to dismiss the § 1983 claim against the City and his desire to please his employer led him to fail to “put in the proof required to support the qualified immunity defense.” Because the officers have pointed to no specific facts to support this claim, they can show no prejudice, and the district court’s rejection of their motion is affirmed. Moreover, the officers’ motion for counsel fees under N.Y.Pub.Off.Law § 18 (McKinney 1988) was properly rejected because the entitlement to such fees only arises when a conflict of interest has been found. IV. Rule 11 Sanctions Counsel representing the officers also contends that even if the conflict claim was properly rejected, Rule 11 sanctions should not have been imposed on her because there was a good faith factual and legal basis for the conflict motion. We review a district court’s Rule 11 determinations for abuse of discretion. N.A.S. Import, Corp. v." }, { "docid": "23176953", "title": "", "text": "that an actual conflict of interest adversely affected [the defense] lawyer’s performance” during the trial. Gordon v. Norman, 788 F.2d 1194, 1198 (6th Cir.1986). In contrast, this Court found in Rodick that the potential conflict had never materialized, and distinguished Dunton for precisely that reason. Rodick, 1 F.3d at 1350. It is clear that, as was true in Rodick, Balsámico cannot make the required showing of a sufficiently serious actual conflict of interest. The particular conflict cited in Dunton as inherent in Section 1983 actions against municipalities, namely that the municipality can escape liability by arguing that its employees were not acting within the scope of official employment while the employee can escape liability by arguing the opposite, is simply not present here. At no time did Gorman assert that Balsámico was acting “outside the scope of his employment” during the January 1999 assault, as the attorney had in Dunton. Rather, Balsamico’s defense, before and during trial, was that he had not actively participated in the January 1999 assault. Nor can Balsámico argue that Gorman failed, because of his loyalty to the County, to present a qualified immunity defense on his behalf. Even after Gorman was replaced by Diodati, a wholly independent attorney, Balsámico never attempted to assert a qualified immunity defense. Balsámico would not have been entitled to qualified immunity in any event, because Patterson’s equal protection claim arising out of that incident involved “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Jemmott v. Coughlin, 85 F.3d 61, 67 (2d Cir.1996) (rejecting qualified immunity defense where a plaintiff alleged actions sufficient to establish a hostile work environ ment on the basis of race). Balsámico, moreover, testified at trial that he knew treating people differently on the basis of race was unconstitutional. Gorman therefore neither advanced an argument contrary to Balsamico’s interest, such as that Balsámico was acting outside the scope of his employment, nor failed to present a valid defense for reasons of loyalty to his other" }, { "docid": "22564784", "title": "", "text": "the Suffolk County Police Department and the Pfeiffers seeking $50 million compensatory damages, $50 million punitive damages and reasonable attorney’s fees. Dunton alleged violations of 42 U.S.C. § 1983 (Supp. III 1979) by Officer Pfeiffer and his patrol car partner for the actions in the parking lot, by a desk sergeant for failing to make a report, and by Officer Pfeiffer and other members of the police department for covering up and conspiring to cover up the incident. He also alleged that the Pfeiffers violated 42 U.S.C. §§ 1983 and 1985 (Supp. II 1978) by conspiring to cover up the incident with Angela’s complaint of sexual abuse. Finally, he alleged pendent state claims of assault and battery against Robert Pfeiffer and false arrest and malicious prosecution against Angela Pfeiffer. By local law, Suffolk County provides for the representation of its employees sued under section 1983. See App. at 1325-28. Robert Pfeiffer and Suffolk County were represented in this action by the office of the Suffolk County Attorney (County Attorney). An indication that this joint representation might create a conflict came in a form letter from the County Attorney to Robert Pfeiffer dated August 25, 1981 suggesting that because “plaintiff has alleged that [Pfeiffer] acted in [his] personal capacity and/or has demanded punitive damages” and because of possible counterclaims, Pfeiffer should contact private counsel “for such additional advice as may be appropriate.” App. at 1199-200. Angela Pfeiffer retained her own attorney. The County Attorney’s answer to Dun-ton’s complaint included an affirmative defense that Robert Pfeiffer was acting in good faith pursuant to his official duties and responsibilities. However, it was the last time that the defense contended that Pfeiffer was acting in good faith as a police officer. The County Attorney told the jury in opening statements that Pfeiffer “acted as a husband, not even as an officer,” App. at 135. Similarly, he told the jury in closing statements that it was obvious Pfeiffer “was acting as an irate husband rather than a police officer,” App. at 989, and that he acted “with the human spirit as a husband, not really" }, { "docid": "22564787", "title": "", "text": "also have been awarded in any event. See 580 F.Supp. 974, 975-76 (E.D.N.Y.1983). II Robert Pfeiffer appeals on the ground that the Suffolk County Attorney failed to represent his interest adequately because of the attorney’s conflicting representation of Suffolk County. Specifically, Officer Pfeiffer claims that it was in his interest to assert his immunity from section 1983 liability based on good faith actions within the scope of his employment. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 & n. 30, 102 S.Ct. 2727, 2738-39 & n. 30, 73 L.Ed.2d 396 (1982); Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Pfeiffer contends that the attorney undermined the good faith immunity defense by repeatedly stating that Pfeiffer acted not as a police officer but as an “irate husband.” Municipalities commonly provide counsel for their employees and themselves when both municipality and employee are sued. The Suffolk County Attorney’s representation of Officer Pfeiffer here was mandated by statute. See Suffolk County Local Law No. 30 (1981), reprinted in App. at 1325-28. Prior to 1978, such representation would not have caused a conflict because municipalities were not “persons” subject to section 1983 liability. See Monroe v. Pape, 365 U.S. 167, 187-92, 81 S.Ct. 473, 484-86, 5 L.Ed.2d 492 (1961). Thus, a municipality would have had no reason to give an employee less than full representation. However, since the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities can be held liable under section 1983 for employees’ actions taken pursuant to municipal policy. After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict. See Van Ooteghem v. Gray, 628 F.2d 488, 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982). A municipality may avoid liability by showing that the employee was not acting within the scope of his official duties," }, { "docid": "2629303", "title": "", "text": "that joint representation may bring, a trial judge must be ever sensitive to that possibility and act accordingly, even absent an objection. Whether the possibility of a conflict does in fact exist requires an analysis of the respective interests of the joint parties. In arguing that a conflict of interest existed between the Village and themselves, so as to make joint representation improper, the movants largely rely on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.1984). We are convinced that Dun-ton is readily distinguishable from the case before us. In Dunton, the plaintiff brought a section 1983 suit against a police officer and his employer, the County of Suffolk, State of New York. An altercation had developed between plaintiff Dun-ton and Pfeiffer, a police officer, after the latter found his wife in a car with the plaintiff, and Mrs. Pfeiffer claimed that Dunton had made improper advances. Id. at 905. Pfeiffer threw Dunton out of the car and struck him repeatedly. The County Attorney represented both Pfeiffer and the County of Suffolk at trial. Id. at 906. In his answer to the complaint, Pfeiffer asserted a good faith immunity defense. During the trial, however, the County Attorney undermined that defense by stating that Pfeiffer acted as an “irate husband” and not as a police officer. Id. The Second Circuit, observing that the County Attorney not only failed to be a “conscientious advocate” for Pfeiffer but acted against his interests, and declared that disqualification was appropriate. Id. at 907. In the course of its opinion, the court acknowledged that Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), had rendered municipalities liable under section 1983 for an employee’s action taken pursuant to municipal policy. 729 F.2d at 907. It then concluded: “After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict____ A municipality may avoid liability by showing that the employee was not acting within the scope of his official duties, because his unofficial actions would not be pursuant to municipal policy.”" }, { "docid": "2629304", "title": "", "text": "trial. Id. at 906. In his answer to the complaint, Pfeiffer asserted a good faith immunity defense. During the trial, however, the County Attorney undermined that defense by stating that Pfeiffer acted as an “irate husband” and not as a police officer. Id. The Second Circuit, observing that the County Attorney not only failed to be a “conscientious advocate” for Pfeiffer but acted against his interests, and declared that disqualification was appropriate. Id. at 907. In the course of its opinion, the court acknowledged that Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), had rendered municipalities liable under section 1983 for an employee’s action taken pursuant to municipal policy. 729 F.2d at 907. It then concluded: “After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict____ A municipality may avoid liability by showing that the employee was not acting within the scope of his official duties, because his unofficial actions would not be pursuant to municipal policy.” Id. We are troubled by the Second Circuit’s broad holding that after Monell an auto matic conflict results when a governmental entity and one of its employees are sued jointly under section 1983. But see Dun-ton, 729 F.2d at 908 n. 4 (disavowing a per se rule); see also Clay v. Doherty, 608 F.Supp. 295, 304 (D.C.Ill.1985) (calling for sensitivity to an actual conflict instead of a per se conflict rule). We believe that that holding must be read in context with the factual situation present in Dunton. Here the facts are quite different. The Village attorney's conduct during the discovery stage did not suggest a conflict of interest. His delinquencies were equally detrimental to both the Village and the individual defendants. Likewise, his conduct after the default judgment and prior to the award of damages did not indicate a conflict. There was no “fingerpointing” or divided allegiance. In contrast to the defense asserted by counsel in Dunton, the Village conceded that the actions of Smith and Frierson had been taken in their official capacities." }, { "docid": "22564783", "title": "", "text": "the maneuvers. Defendant-appellant Robert Pfeiffer, Angela’s husband and also a Suffolk County police officer, came upon the scene in his patrol car, threw Dunton out of Ms. Pfeiffer’s car, struck him repeatedly and left him lying in the parking lot. Dunton suffered non-disabling and non-permanent injuries from the incident. Dunton was arrested after Angela Pfeiffer filed a criminal complaint on June 18, alleging third degree sexual abuse in violation of N.Y.Penal Law § 130.55 (McKinney 1975). When the matter did not come to trial by November 16, Dunton moved to dismiss on the ground that the sixty day limit for trial, N.Y.Crim.Proc.Law § 30.30 (McKinney 1981 & Supp.1983), had been exceeded. The motion was denied and Dunton moved for reconsideration. On December 23, the Suffolk County district court' concluded that it had erred in computing the sixty day period and that sixty-seven days were actually chargeable to the prosecution. Accordingly, it granted the motion to dismiss. The Appellate Division affirmed. See App. at 1342-47. On August 17, 1981, Dunton filed this action against Suffolk County, the Suffolk County Police Department and the Pfeiffers seeking $50 million compensatory damages, $50 million punitive damages and reasonable attorney’s fees. Dunton alleged violations of 42 U.S.C. § 1983 (Supp. III 1979) by Officer Pfeiffer and his patrol car partner for the actions in the parking lot, by a desk sergeant for failing to make a report, and by Officer Pfeiffer and other members of the police department for covering up and conspiring to cover up the incident. He also alleged that the Pfeiffers violated 42 U.S.C. §§ 1983 and 1985 (Supp. II 1978) by conspiring to cover up the incident with Angela’s complaint of sexual abuse. Finally, he alleged pendent state claims of assault and battery against Robert Pfeiffer and false arrest and malicious prosecution against Angela Pfeiffer. By local law, Suffolk County provides for the representation of its employees sued under section 1983. See App. at 1325-28. Robert Pfeiffer and Suffolk County were represented in this action by the office of the Suffolk County Attorney (County Attorney). An indication that this joint representation" }, { "docid": "9845392", "title": "", "text": "after defendants told him about it; that he told defendant Norman, but not the other two defendants, at lunch on the first day of trial about an offer plaintiff had made the day before to settle for $7,000; that their trial counsel wore “two hats,” in that as Law Director he decides which cases the City will settle and that responsibility interfered with his exercise of independent professional judgment on defendants’ behalf; that he never told them that they could retain their own law yer or lawyers; and that he has now told them that he will not authorize payment of the judgment in this lawsuit. Defendants rely on Dunton v. County of Suffolk, 729 F.2d 903, modified 748 F.2d 69 (2d Cir.1984). Dunton sued a county police officer under 42 U.S.C. § 1983 and for battery under state law. The county was also a defendant. The county attorney advised the police officer before trial that there was a possible conflict in his joint representation of Suffolk County and the police officer because punitive damages were sought, but the officer was never informed that the attorney intended to take a stance adverse to the officer’s best interests. At trial, the attorney argued that the police officer was acting as an “irate husband” in assaulting the plaintiff, and not as an employee of the county. The court noted the conflict: [S]ince the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), municipalities can be held liable under section 1983 for employees’ actions taken pursuant to municipal policy. After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict. See Van Ooteghem v. Gray, 628 F.2d 488, 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909, 102 S.Ct. 1255, 71 L.Ed.2d 447 (1982). A municipality may avoid liability by showing that the employee was not acting within the scope of his official duties," }, { "docid": "23650229", "title": "", "text": "prosecution damages were excessive as a matter of law. III. Conflict of Interest Relying on Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir.), amended on other grounds, 748 F.2d 69 (2d Cir.1984), the police officers claim that the district court erred.in rejecting their (concededly timely ) post-trial motion for a new trial because their lawyer was also representing the City, resulting in an improper conflict of interest. In Dunton, a police officer happened upon his wife and a co-worker (Dunton) apparently sharing an intimate moment in a car, dragged Dunton out of the car, and beat him. Subsequently, Dunton brought a § 1983 claim against the officer and the Suffolk County Police and, at trial, a county attorney represented both defendants. In considering the officer’s argument that this constituted an improper conflict, we noted that because municipalities may be held liable under § 1983, see Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), joint representation of municipalities and their employees presents a possibility for conflict of interest because “[a] municipality may avoid liability by showing that the employee was not acting within the scope of his official duties” and “[t]he employee, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties.” Dunton, 729 F.2d at 907. We found that the potential for conflict had become manifest because the county attorney had opened to the jury by saying that the officer “acted as a husband, not even as an officer,” and closed by saying that it was obvious that the officer .“was acting as an irate husband.” Because of this manifest, serious and direct conflict and because the officer was never advised that his attorney would take positions contrary to his own, the district court had a duty to warn the officer about the conflict and its failure to do so was error. Id. at 908. Dunton is distinguishable. Here, both the City and the officers argued that the officers were acting in their official capacity. Furthermore, the officers concede" } ]

[ { "docid": "2291533", "title": "", "text": "Re Isidor Klein, Inc., 22 F.(2d) 906, 909. This case had to do with the setting aside of the confirmation of a composition, but the court in its opinion uses the following language: “A similar problem exists with respect to setting aside a discharge (section 15; 11 USCA § 33); and in fairness to Mr. Remington it should be noted that further support for his view can be found in several cases involving the setting aside of discharges. See Remington, op. cit. § 3615.” It seems to be well settled that courts of bankruptcy possess a general equity power to set aside discharges if they have been obtained by mistake, surprise, or excusable neglect. In re Goldenberg & Halbert (D. C.) 286 F. 292; In re Applegate (D. C.) 235 F. 271; In re Louisville Nat. Banking Co. (C. C. A. 6) 158 F. 403. In Rash v. Metzger, 31 F.(2d) 424, 425 (C. C. 3d Circuit), the court in discussing this general equity power uses the following language: “The law, which -is almost universal, is that courts of equity have for a limited time full control over their own doings and when they discover error may, in furtherance of justice, correct it. To hold that this general and indeed essential power of the District Court, administering bankruptcy on principles of equity, was withdrawn by the Congress when it conferred upon the court jurisdiction to set aside a discharge procured through fraud involves an inference which we think is not supported by the act. Such an inference, if Sustained, would force a finding that the Congress intended that the District Court, when it had done a wrong through mistake, misinformation or inadvertence, should not correct it and that the inequities or injustice that follow in its train should continue.” This case is cited with approval in the very recent ease of In re Martin in the Seventh Circuit, reported in 38 F.(2d) 629, in which the language of the court is as follows : “It is urged that the court was without any authority to revoke a discharge, except for" } ]

[ { "docid": "5597132", "title": "", "text": "with General Order 47, the record itself discloses that the Referee’s finding that the bankrupt had violated Section 14, sub. c(2) was clearly erroneous. It was testified that in 1945, three years prior to the filing of his bankruptcy petition, the bankrupt closed out a checking account with his bank and after he had done so, disposed of his check books, bank books and cancelled vouchers. There was nothing in the evidence to show that the missing records were necessary to determine the bankrupt’s financial status as of the date of the filing of the bankruptcy petition, or that there was any fraudulent intent on the part of the bankrupt in discarding them. To sustain an objection to a discharge under Section 14, sub. c(2) the evidence must disclose that the failure to preserve records makes it impossible to determine the bankrupt’s “financial condition” and material “business transactions”. In re Milne, D.C.N.J.1941, 40 F.Supp. 89, 91; In re Weisberger, D.C.M.D.Pa.1930, 41 F.2d 275. We have on previous occasions held that in a review proceeding the burden is upon the objecting creditor to establish the facts necessary to prevent the bankrupt’s discharge. Lodi Trust Co. v. Cohn, 3 Cir., 1939, 108 F.2d 26; In re Wolf, 3 Cir., 1948, 165 F.2d 707, 710. In the instant case the objecting creditor failed to sustain that burden. It is regrettable that the Referee failed to give consideration to the well-settled principles that the right to a discharge is statutory, and that Section 14 of the Bankruptcy Act must be construed strictly as against the objector and liberally in favor of the bankrupt. Roberts v. W. P. Ford & Sons, 4 Cir., 1948, 169 F.2d 151; In re Pinkston, D.C. Texas, 1950, 93 F.Supp. 942. For the reasons stated the Order of the District Court denying the bankrupt’s discharge will be reversed. . Title 11 U.S.C.A. § 32, sub. c(3) Supp. . On May 11, 1948, Morris R. Leichter filed his petition in bankruptcy in the United States District Court for the District of New Jersey. On August 10, 1948, an Order of Discharge" }, { "docid": "16949922", "title": "", "text": "D.C., 34 F.Supp. 774; In re Brown, D.C., 35 F.Supp. 619. The case of In re Federman, 2 Cir., 119 F.2d 754, cited on behalf of the claimant, is not in point, but is clearly distinguished on the facts, as in that case the Court lacked jurisdiction, because the bankrupt did not show the required residence in this district. While it is true that if proper objection had been duly and seasonably made, the discharge might not have been granted as to debts which if any had been discharged in the proceeding in the Southern District that did not deprive the Court of jurisdiction, but the granting of the discharge was one of the questions the Court had to determine, and the remedy if aggrieved was to petition to review the order of the Referee, or as provided by Section 15 of the Bankruptcy Act, Title 11, § 33, U.S.C.A., if the claimant could bring herself under the provisions of that Section, which reads as follows: “§ 33. Discharges, when revoked “The court may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it if it shall .be made to appear that it was obtained through the fraud of the bankrupt, that the knowledge of the fraud has come to the petitioners since the granting of the discharge and that the actual facts did not warrant the discharge.” This motion was not made within one year after the discharge, and that section is a statute of limitation. In re Wrobel, D.C., 18 F.Supp. 623. The claimant has been guilty of undue laches, notice of this motion not having been given for over 6 years and 6 months after the discharge. The discharge was not obtained by fraud. Fraud is frequently mentioned in the papers of the moving party, but no facts are alleged which furnish any proof of fraud. Certainly there was no fraud, but at most an error, if the bankrupt had been discharged formerly in the proceeding" }, { "docid": "8973382", "title": "", "text": "discharge. On November 19, 1936, the referee filed his report in which he recommended a dismissal of appellant’s objections to the discharge, to which appellant excepted. On January 11, 1937, the court confirmed' the report, dismissed appellant’s objections, and discharged the bankrupt from all debts provable against his estate under the Bankrupty Act (11 U.S.C.A. § 103) which were in existence on January 21, 1936, except such debts as are excepted by law from such discharge. From this order the appeal is taken. The assignments of error are: (1) The court should have found that Elsie Hensel held the property on a secret trust for the benefit of the bankrupt; (2) the court should have found that the bankrupt had an interest in the property at the time he filed his petition which he failed to schedule; (3) the court erred in dismissing petitioner’s objections to the discharge; (4) the court erred in approving the referee’s report and in discharging the bankrupt; and (5) the order of the discharge was against the weight of the evidence. Section 14(b) (4) of the Bankruptcy Act as amended, 11 U.S.C.A. § 32(b) (4) provides that if the bankrupt has at any time subsequent to the first day of the twelve months immediately preceding the filing of his petition, transferred, removed, de stroyed or concealed any of his property, or permitted the same to be done, with intent to hinder, delay, or defraud his creditors, it shall be a bar to his discharge. It is conceded that a fraudulent transfer of property prior to the twelve months referred to in this section will not, in and of itself, constitute a bar to the bankrupt’s discharge. Moriyama v. Allen (C.C.A.) 13 F.(2d) 117; In re Plank (D.C.) 289 F. 900; In re Huntley (D.C.) 14 F.Supp. 784; In re Hennebry (D.C.) 207 F. 882. Appellant contends, however, that the transfer here was in fraud of creditors, and even though it was executed almost three years before the petition in bankruptcy was filed, yet it was concealed continuously from its inception until the time of the" }, { "docid": "13468154", "title": "", "text": "excepted from tlie operation of the discharge, tlie only proper issue being the bankrupt’s right to a discharge; and that tlie effect of the discharge, if granted, upon a particular claim is to be determined when the discharge is pleaded or relied upon as a defense to tlie enforcement of such claim. In re Thomas, D.C.Iowa, 92 F. 912; In re Rhutassel, D.C. Iowa, 96 F. 597; In re Havens, 2 Cir., 272 F. 975. However, since the decision of iLe Supreme Court in Local Loan Co. v. Hunt, 292 U.S. 234, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195, the jurisdiction of a bankruptcy court to limit the effect of its own order of discharge is no longer questioned. But the court is not bound to exercise such jurisdiction and does not do so under usual circumstances. In re Devereaux, 2 Cir., 76 F.2d 522, certiorari depied 296 U.S. 589, 56 S.Ct. 100, 80 L.Ed. 416; In re Barber, 3 Cir., 140 F.2d 727; Watts v. Ellithorpe, 1 Cir., 135 F.2d 1. Such power should be exercised by the court only when a failure to act will result in embarrassment to the bankrupt or the creditor. The approved practice at present, unless such result is shown to exist, is to enter a general order of discharge and permit the bankrupt to plead his discharge as a defense in. the state or other court where the creditor seeks to enforce his claim. The court having jurisdiction of the subject matter of the claim and of the parties is competent to determine whether the debt is affected by the discharge in bankruptcy or whether the claim is excluded under any of the provisions of § 17, 11 U.S.C.A. § 35. Greenfield v. Tuccillo, 2 Cir., 129 F.2d 854; In re Byrne, 2 Cir., 296 F. 98; In re Anthony, D.C.Ill, 42 F.Supp. 312; In re Grover, D.C.Minn., 63 F.Supp. 644. When a court of bankruptcy elects to exercise its equitable jurisdiction (as was done in this case) to determine the dischargeability of a particular debt which had b$en reduced to" }, { "docid": "4499510", "title": "", "text": "412; In re Willett-Baker Lumber Co., D.C., 31 F.Supp. 130; In re Mid America Co., D.C., 31 F.Supp. 601; In re James Mytinger, D.C., 31 F.Supp. 977; In re De Graw Motor Co., 4 Prentice Hall Unemployment Ins. Serv. Neb. para. 27,581, p. 27, 111; In the Matter of Siegelbaum’s Inc., D.C., 38 F.Supp. 1009; In re Independent Automobile Forwarding Corp., 2 Cir., 118 F.2d 537; cf. In re Lambertville Rubber Co., 3 Cir., 111 F.2d 45; In re Sixty-Seven Wall St. Restaurant Corp., D.C., 23 F.Supp. 672; City of New York v. Feiring, May 26, 1941, 61 S.Ct. 1028, 85 L.Ed. -; Bankruptcy — Priorities—Sales Tax Claim Against Bankrupt Vendor Held Not Entitled to Priority, 54 Harvard Law Review 1390. In fact only the dictum of one district judge who afterwards reversed himself supports a contrary view. In re Mid America Co., D.C., 31 F.Supp. 601, 604; In Re Mosby Coal & Mining Co., D.C., 24 F.Supp. 1022; In re Lechtman Printing Co., D.C., 38 F.Supp. 1008. N.J.R.S. 43:21 — 14, as amended (1939) Chap. 309, N.J.S.A. 43:21-14. Penna.P.L. (1937) 2897, § 309, as amended P.L. (1937) 658, § 3, 43 Purdon’s Stat.Ann. § 789. N.J.R.S. 43 :21-14, as amended (1939) Chap. 309, N.J.S.A. 43:21-14. Penna.P.L. (1937) 2897, § 310, 43 Purdon’s Stat.Ann. § 790. Price v. United States, 269 U.S. 492, 46 S.Ct. 180, 70 L.Ed. 373; In re Sherwoods, 2 Cir., 210 F. 754, Ann.Cas.1916A, 940; Kaw Boiler Works v. Shull & Sanderson, 8 Cir., 230 F. 587, L.R.A.1916E, 628; In re Fisher & Co., D.C., 148 F. 907; Taxation — Receivers—Taxes as Debts Under United States Priority Statutes, 39 Harvard Law Review 784 (note). Cf. Bankruptcy — Taxes—Debts—Priority of Claims of Government for Taxes Against the Estate of Bankrupt — Construction of Sections 64 and 64B of the Bankruptcy Act, 5 George Washington Raw Review 257 (note); Creditors’ Rights — Section 64 of The Bankruptcy Act — City’s Right to Preference for Money Owed Under City Sales Tax By Insolvent Vendor, 36 Columbia Raw Review 1356 (note). 11 U.S.C.A. § 35; 11 U.S.C.A. § 93, sub." }, { "docid": "9597797", "title": "", "text": "deceased, then pending in probate in the County Court of Milwaukee County; 2. That he was an heir at law of Anna Frawley, deceased, whose estate was then pending in the County Court of Milwaukee County; 3. That he was indebted to the estate of Margaret Sedgley in the sum of approximately $7000.00 by reason of embezzlements committed by him as executor thereof; 4. That he had compensation accruing to him under written agreement from the Sheco Realty Company; 5. That he had a written agreement with the Milwaukee Gas Light Company under which he knew when he filed his schedules there was shortly bound to be due either $12,000.00 in installments, or $11,-000.00 cash. The first contention made by the bankrupt is that neither the allegations of the petitions nor the evidence is sufficient to justify a revocation as authorized by Section 15 of the Bankruptcy Act, 11 U.S.C.A. § 33. The argument is made that this provision must be distinguished from Section 14 of the Act, 11 U.S.C.A. § 32, which provides the conditions whereby objections to discharge may be interposed. In other words, it is the bankrupt’s contention, as we understand it,-that concealment of assets by a bankrupt, while sufficient under Section 14 to defeat an application for discharge, can not be made the basis for the revocation of a discharge. In fact, it is argued that the fraud designated in Section 15 concerns only the method and manner employed by the bankrupt in obtaining a discharge, such as inducing the Clerk to refrain from mailing the statutory notice of the hearing on the application therefor. Of the authorities cited in support of this argument, there is one only which appears to be in point. In re Weintrob, D.C., 263 F. 904, 906. It further appears that what the court said in that case was dictum, but whether so or not, we do not agree with the contention. It is our view that any fraud which will defeat a discharge tinder Section 32 may be utilized to revoke a discharge under Section 33 under the conditions imposed" }, { "docid": "11634796", "title": "", "text": "terms of section 13 of the latter act, where this court would have jurisdiction to vacate its decree of confirmation improvidently rendered; but, plainly, congress did not contemplate that a composition should be set aside on the ground that a creditor had failed to get notice of the proceedings because his address was misstated in the bankrupt’s schedule by mistake.” “Per- Petitions to set aside orders of discharge involve a similar problem, namely, the proper construction and application of section 15 of the Bankruptcy Act, 11 U.S.C.A. § 33. Many cases hold that courts of bankruptcy possess a general equity jurisdiction to set aside discharges where equitable grounds other than fraud (e. g., mistake, inadvertence, surprise or excusable neglect) are shown in an application seasonably made. Sherman & Son v. Corin, 1 Cir., 1934, 73 F.2d 468; Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; In re Louisville Nat. Banking Co., 6 Cir., 1908, 158 F. 403; In re Goldenberg & Halbert, D.C.E.D.Pa.1923, 286 F. 292; In re Applegate, D.C.S.D.N.Y.1916, 235 F. 271. A case to the contrary is In re Aasand, D.C.D.N.D.1925, 7 F.2d 135. These cases involved efforts by creditors to set aside orders of discharge because notice of the application for discharge was not received, or specifications of objection to discharge were unavoidably, or inadvertently, not filed. In the case at hand, a wage-earner’s plan for an extension had been confirmed. Thereafter, the creditor petitioned the referee to dismiss the proceedings. The record before the court offers no explanation as to why the objection was first proffered subsequent to the confirmation of the plan. It is unnecessary to decide whether, in a proper ease, absent any showing of fraud, a court of bankruptcy might revoke or set aside such a wage-earner's plan once it has been confirmed. Even if a court of bankruptcy has such power, no basis for the granting of such equitable relief has been shown to exist, in this case. The referee’s order denying the motion to dismiss the proceedings is confirmed." }, { "docid": "4175094", "title": "", "text": "proved or not, it stands separate and apart from the filing of the petition in bankruptcy.” The statute reads “any qualified person may file a petition to be adjudged a voluntary bankrupt.” Section 95(a) Title 11 U.S.C.A. The other jurisdictional features are implied. Royal Indemnity Co. v. American Bond Co., supra; In re Guanacevi Tunnel Co., 2 Cir., 201 F. 316; In re Carnera, D.C., 6 F.Supp. 267, 269. In re C. Jutte & Co., 3 Cir., 266 F. 357. In re Walrath, D.C., 175 F. 243. It was held that the Bankruptcy Act of 1898 did not deprive creditors of their property without due process of law notwithstanding the fact that, “Adjudication follows as matter of course, and brings the bankrupt’s property into the custody of the court for distribution among all his creditors.” Hanover National Bank v. Moyses, supra, 22 S.Ct. 861. “He may be, in fact, fraudulent, and able and unwilling to pay his debts; but the law takes him at his word, and makes effectual provision, not only by civil, but even by criminal, process to effectuate his alleged intent of giving up all his property.” In re Fowler, 1 Low. 161, Eed.Cas.No.4998, quoted with approval in Hanover National Bank v. Moyses, supra. “Antecedent fraud in the conduct of the affairs of the corporation is not fraud concerning which the bankruptcy court is powerless to deal if and when that fraud is made to appear.” In re Marine Transit Corporation, supra; In re Farrell Realty Co., D.C., 10 F.2d 612. In the following cases the adjudication has been set aside upon petition of the receiver of the state court on the ground of an abuse of power by persons acting as director’s which was concealed from the bankruptcy court: Zeitinger v. Hargadine-McKittrick Dry Goods Co., 8 Cir., 244 F. 719; In re Campbell County Hardware Co., D.C., 15 F.2d 78; In re E. C. Denton Stores Co., D.C., 5 F.Supp. 307. See In re Mississippi Valley Utilities Corporation, D.C., 2 F.Supp. 995. In re Beaver Cotton Mills, D.C., 275 F. 498. See In re Ives, 6" }, { "docid": "348063", "title": "", "text": "an “appointment” within the meaning of Section 3, sub. a(5) of the Act, 11 U.S.C.A. § 21, sub. a(5), if so, the involuntary petition was brought more than four months after the appointment and should be dismissed. According to the weight of authority and reason, the appointment of the temporary receiver constitutes an act of bankruptcy. Blue Mountain Iron & Steel Co. v. Portner, 4 Cir., 131 F. 57; In re Detroit Transportation Trucking Co., D.C., 276 F. 757; In re William S. Butler & Co., 4 Cir., 207 F. 705, at page 711; In re Luxor Cab Mfg. Corp., 2 Cir., 25 F.2d 644. The reason underlying these authorities is plain. A temporary receiver no less than a permanent one “takes charge of the property” within the meaning of the act. And from the notorious fact of possession by the receiver as well as by judicial orders of notice incidental to the receivership, the creditors are put on notice as well by a temporary appointment as by a permanent appointment of the act of bankruptcy. But counsel for the petitioning creditors objects that under Section 18, sub. b of the Chandler Act, 11 U.S.C.A. § 41, sub. b, only the alleged bankrupt may oppose the petition; that the state court receiver is without standing to oppose. This contention also is unsound. It is true that Section 18, sub. b of the Chandler Act, eliminated the express authority theretofore carried in the act for opposition to an involuntary petition by creditors. But the general practice current prior to the Chandler Act, whereby equity receivers were heard in bankruptcy proceedings (cf. In re Pusey & Jones Co., 2 Cir., 286 F. 88; In re Harmony Creamery Co., D.C., 18 F.2d 609; In re Morosco Holding Co., D.C., 296 F. 516) stemmed not from express statutory authorization but rather from the inherent equitable power of the bankruptcy court to grant intervention in a proper exercise of discretion. In re S. W. Strauss & Co., 2 Cir., 67 F.2d 605; In re Enjay Holding Co., D.C., 18 F.Supp. 445. This inherent po-vver in" }, { "docid": "13724416", "title": "", "text": "interested, for which loan he took a note indorsed by the bankrupt and his wife; and it is alleged that Kinne in making the loan relied on financial statements in writing as to the financial condition of the bankrupt’s wife and of the company, which statements were false and known by the bankrupt to be false. A copy of the $5,000 note is annexed, from which it appears that the place of payment was at the office of Kinne’s attorney, 1440 Broadway. By section 15 of the Bankruptcy Act, 11 U.S.C.A. § 33, discharge of a bankrupt may be revoked where it was obtained through fraud and the actual facts did not warrant the discharge, provided application is made within one year and there is no undue laches. The listing of a creditor at a wrong address when the correct address is known, for the purpose of keeping the bankruptcy secret and preventing that creditor from opposing the discharge, is held to be fraud practiced in obtaining discharge. In re Roosa, D.C., 119 F. 542. Here the creditor was listed with an address that was altogether inadequate, but it may be doubted whether the address was deliberately misstated. The address would have been sufficient if the attorney’s name had been given, and the failure to add his name or the room number may have been owing to the bankrupt’s carelessness. A choice between fraud and negligence need not be made, however, since the application must be denied on another point. A creditor who asks that a discharge be revoked is required to make a fair showing that the actual facts did not warrant discharge, that if the matter is reopened there is reaáon to believe that the bankrupt will not win a discharge. In this respect the petition is like a motion to open a default and should embody the equivalent of an affidavit of merits. In re Carobine, D.C.N.Y., 8 F. Supp. 605. This petition does not make any such showing. It is not ground for denying discharge that false statements concerning the financial condition of the bankrupt’s wife" }, { "docid": "5127167", "title": "", "text": "Circuit Courts of Appeals in other circuits three times: First, in Re Fiegenbaum, in the Circuit Court of Appeals for the Second Circuit, decided on February 25, 1903, 121 F. 69, 57 C.C.A. 409; second, in Kuntz v. Young, in the Circuit Court of Appeals for the Eighth Circuit, decided on July 28, 1904, 131 F. 719, 65 C.C.A. 477; and, third, again in the Circuit Court of Appeals for the Second Circuit, in Re Kuffler, 151 F. 12, 80 C.C.A. 509, decided January 7, 1907. In the first case a discharge had been refused. In the second and third cases the petition for a discharge had been dismissed for want of prosecution, the same as here. And yet the same result was 'reached practically in each case, all in support of the judgment of the District Court now appealed from.” Other cases examined sustaining the same principle are: In re Early, D.C., 34 F.Supp. 774; In re Loughran, 3 Cir., 218 F. 619; In re Cooper et al., D.C., 236 F. 298; In re Spangler, D.C., 256 F. 62; In re Mayer, D.C., 4 F.Supp. 203; In re Kough, D.C., 25 F.Supp. 656; In re Schwartz, D.C., 16 F.Supp. 993; Hill v. Railroad Industrial Finance Company, 10 Cir., 92 F.2d 973; In re Vardell, 28 A.B.R.,N.S., 697. In the last mentioned case the facts are in all respects the same as those in the instant case. The bankrupt in 1933 filed a voluntary petition in bankruptcy and failed to pay the costs as was ordered by the court or to secure the same and the proceeding was dismissed. Later, in 1934 or 1935, the bankrupt filed a second petition in which certain claims scheduled in the first petition were rescheduled in the second. It was held that by reason of his failure to prosecute the first petition claims scheduled therein were res adjudicata under the second petition. District Judge Gore in his opinion says: “The bankrupt stood by and failed to prosecute his case, was cited to appear in •court, paid no attention to same, and permitted his case" }, { "docid": "16949921", "title": "", "text": "of said letter to the bankrupt; and about 7 months after the bankrupt’s discharge. The said Harry N. Cohen was listed as a creditor, and had notice of the bankruptcy proceedings of the said bankrupt in -this proceeding mailed to him at 72-34 Austin Street, Forest Hills, L. I. The bankrupt and others were examined at length as to his assets and -possible interest in corporations, and with respect to any interest in, or the ownership in, real estate, the transcribed stenographer’s minutes of which examinations are not now to be found in the clerk’s office of this Court, nor have any of the attorneys who appeared on such examination a copy thereof, and they cannot be replaced, as the original minutes of the stenographer have been destroyed, due to length of time that has elapsed since the examination was had. The Court had jurisdiction of the individual bankruptcy proceeding in this district. Bluthenthal v. Jones, 208 U.S. 64, 28 S.Ct. 192, 52 L.Ed. 390; In re Wrobel, D.C., 18 F.Supp. 623; In re Early, D.C., 34 F.Supp. 774; In re Brown, D.C., 35 F.Supp. 619. The case of In re Federman, 2 Cir., 119 F.2d 754, cited on behalf of the claimant, is not in point, but is clearly distinguished on the facts, as in that case the Court lacked jurisdiction, because the bankrupt did not show the required residence in this district. While it is true that if proper objection had been duly and seasonably made, the discharge might not have been granted as to debts which if any had been discharged in the proceeding in the Southern District that did not deprive the Court of jurisdiction, but the granting of the discharge was one of the questions the Court had to determine, and the remedy if aggrieved was to petition to review the order of the Referee, or as provided by Section 15 of the Bankruptcy Act, Title 11, § 33, U.S.C.A., if the claimant could bring herself under the provisions of that Section, which reads as follows: “§ 33. Discharges, when revoked “The court may, upon" }, { "docid": "8973383", "title": "", "text": "evidence. Section 14(b) (4) of the Bankruptcy Act as amended, 11 U.S.C.A. § 32(b) (4) provides that if the bankrupt has at any time subsequent to the first day of the twelve months immediately preceding the filing of his petition, transferred, removed, de stroyed or concealed any of his property, or permitted the same to be done, with intent to hinder, delay, or defraud his creditors, it shall be a bar to his discharge. It is conceded that a fraudulent transfer of property prior to the twelve months referred to in this section will not, in and of itself, constitute a bar to the bankrupt’s discharge. Moriyama v. Allen (C.C.A.) 13 F.(2d) 117; In re Plank (D.C.) 289 F. 900; In re Huntley (D.C.) 14 F.Supp. 784; In re Hennebry (D.C.) 207 F. 882. Appellant contends, however, that the transfer here was in fraud of creditors, and even though it was executed almost three years before the petition in bankruptcy was filed, yet it was concealed continuously from its inception until the time of the presentation of appellant’s objections to the discharge, and that the property thus conveyed was, and is now, held by the grantee or grantees for the bankrupt on secret trust. It is conceded that if these contentions were fairly supported by the evidence, the District Court would have been warranted in granting the relief demanded by appellant, but it is contended by the bankrupt that there was no fraud, no trust in his favor, and no concealment. The referee made no specific finding as to fraudulent intent in the execution of the deeds, but he found that there was no trust created in which the bankrupt had any interest, and that there was no concealment, and that under section 14(b) (4) 11 U.S.C.A. § 32(b) (4) there was no basis for refusing’ the discharge. With these conclusions we are in accord. We find no error in the court’s order of approval and discharge. It must be borne in mind that this appeal is solely from that order. There is no question raised here relative to the" }, { "docid": "8644289", "title": "", "text": "section 38(4), 11 U.S.C. § 66(4). We have two questions. The first is whether a discharge cannot be set aside unless the provisions of section 15 are met. We consider the better view to be that this section is not a limiting provision. Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; see In re Pope, N.D.Ohio, 1951, 101 F.Supp. 503. Cf. In re Seiden, 2 Cir., 1949, 174 F.2d 586. Contra, In re Aasand, D.N.D., 1925, 7 F.2d 135. A discharge is a judgment, and by equitable principles there should be various grounds on which, by proper application, a party may be relieved. Cf. May v. Fidelity & Deposit Co. of Maryland, 10 Cir., 1961, 292 F.2d 259; Harris v. Warshawsky, 2 Cir., 1950, 184 F.2d 660. Indeed, some courts have held that in the peculiar situation of the bankrupt’s obtaining a discharge of a debt to which, because of prior proceedings, he had no right, revision could be had for the asking. In re Seiden, supra; In re Finkel-stein, E.D.N.Y., 1945, 62 F.Supp. 1015. We need not go that far. At least where there has been no prejudice to the bankrupt and timely application is made, we believe a creditor who has been innocently misled by the referee should be entitled to a correction. Affirmed. . There is an indication in the record that the referee told this to appellant’s counsel as well. If he did, a question of estoppel might arise. We do not reach this question. . Prior to 1938 section 2(a) (8) was in a more restrictive form, authorizing estates to be reopened only when “it appears they were closed before being fully administered.” Bankruptcy Act of 1898, 30 Stat. 544, 546; 1 Collier on Bankrupcty, supra, ¶ 2.47. During this period, courts set aside discharges in the exercise of their general equitable powers without reference to section 2(a) (8). See, e. g., Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; In re Applegate, S.D.N.Y., 1916, 235 F. 271. (L. Hand, J.). . “The court may, upon the application of parties in interest who" }, { "docid": "20929734", "title": "", "text": "that appellant’s adjudication operated as an application for a discharge and should have been so treated by the court. In re Smith, 2 Cir., 112 F.2d 711, 712; In re Farrow, D.C.S.D.Cal., 28 F.Supp. 9, 10; In re Holder, D.C.N.D.Ga., 29 F.Supp. 331, 332; In re Pontello, D.C.W.D.Mich., 29 F.Supp. 332. See, also, concurring opinion of Judge Clark in Cohen v. Keller, 2 Cir., 108 F.2d 495, 496.” To the same effect, in addition to cases cited in the Wara case, are In re Jacobs, D.C., 31 F.Supp. 620; In re Pettis, D.C., 39 F.Supp. 931; In re Powers, D.C., 42 F.Supp. 356; In re Victor’s Ladies’ Shop, D.C., 45 F.Supp. 417. It is to be noted that the theory underlying the aforegoing decisions is that since, on the effective date of the amendatory Act, the bankrupt might still have obtained leave to file a petition for a discharge which is true in the present case, he should not be denied any benefit that might flow from the application of the new law. The test of whether it is “practicable” to apply the provisions of the amendatory Act is whether they can be applied fairly, conveniently and certainly, In re Old Algiers, 2 Cir., 100 F.2d 374, In re Carter, 2 Cir., 32 F.2d 186, because there is no vested right in the bankrupt to have the law stand as it was, provided the change can be so applied. In re Seaholm, 1 Cir., 136 F. 144. It is true that in the present case, just as in the case of In re Wara, supra, and like cases, the time permitted to the bankrupt under the provisions of the old law for applying for a discharge had not expired at the time when the amendatory Act took effect. However, in the case of In re Wara it is significant that the bankrupt petitioned within a year of the effective date of the amendatory Act that its provisions governing discharge be made applicable to this case, while the administration of his estate was still pending in the bankruptcy court, or at" }, { "docid": "20929733", "title": "", "text": "the Chandler Act, was not applicable to this case; and that, therefore, appellant’s adjudication did not operate as an application for a discharge. As there was no other application, the referee recommended that appellant’s petition be denied. The court approved the report, adopted the recommendations and denied the petition. This appeal followed. “As previously stated, this case was oending on September 22, 1938, when the Chandler Act took effect. The proceedings here involved were subsequent to that date and hence were governed, ‘so far as practicable,’ by the provisions of the Chandler Act, including, of course, § 14 of the Bankruptcy Act, as amended by § 1 of the Chandler Act, which provides that ‘The adjudication of any person, except a corporation, shall operate as an application for a dis-' charge.’ “We think it was ‘practicable’ for § 14 of the Bankruptcy Act, as amended by § 1 of the Chandler Act, to govern these proceedings as fully and completely as if appellant’s adjudication had occurred after the Chandler Act took effect. We accordingly hold that appellant’s adjudication operated as an application for a discharge and should have been so treated by the court. In re Smith, 2 Cir., 112 F.2d 711, 712; In re Farrow, D.C.S.D.Cal., 28 F.Supp. 9, 10; In re Holder, D.C.N.D.Ga., 29 F.Supp. 331, 332; In re Pontello, D.C.W.D.Mich., 29 F.Supp. 332. See, also, concurring opinion of Judge Clark in Cohen v. Keller, 2 Cir., 108 F.2d 495, 496.” To the same effect, in addition to cases cited in the Wara case, are In re Jacobs, D.C., 31 F.Supp. 620; In re Pettis, D.C., 39 F.Supp. 931; In re Powers, D.C., 42 F.Supp. 356; In re Victor’s Ladies’ Shop, D.C., 45 F.Supp. 417. It is to be noted that the theory underlying the aforegoing decisions is that since, on the effective date of the amendatory Act, the bankrupt might still have obtained leave to file a petition for a discharge which is true in the present case, he should not be denied any benefit that might flow from the application of the new law. The test" }, { "docid": "20980665", "title": "", "text": "In re Kreuger (D.C.) 196 F. 705; In re Stowe (D.C.) 235 F. 463; In re Fisher (D.C.) 193 F. 104, 26 A.B.R. 793; In re White (C.C. A.) 15 F.2d 371; In re Stradley & Co. (D.C.) 187 F. 285; In re Rothleder (D. C.) 232 F. 398; Bollman v. Tobin (C. C.A. 8th) 239 F. 469; Petition of Safran (C.C.A. 1st) 275 F. 819; In re Day Lumber Co. (D.C.) 8 F.2d 146.’’ (Emphasis added.) See, also, Sloan’s Furriers v. Bradley, 6 Cir., 146 F.2d 757; In re Thomas, 7 Cir., 263 F.2d 287. In the case of In re Smith, 1 N.B.R. 243, 247, 22 Fed.Cas. p. 381, No. 12,-971, 2 Ben. 113, Judge Blatchford (later a Justice of the Supreme Court) had this to say upon the question: “The policy of the bankrupt act, as clearly shown in its provisions, is to give to the creditors of the bankrupt the free, deliberate, unbiased choice, in the first instance, of the person who is to take the assets and manage them. * * * The importance of this policy has been uniformly recognized by this court * * *. It is especially incumbent upon registers in no manner to interfere with or influence either directly or indirectly the choice of an assignee by creditors.” In re Lewensohn, D.C., 98 F. 576, 579, Judge Brown (later a Justice of the Supreme Court) had this to say upon this question: “The objections to Mr. Bacon seem to me insufficient for setting aside the creditors’ unanimous choice. * * * These objections were stated by the bankrupt’s counsel in an address to the referee. * * * The choice of creditors ought not to be interfered with on slight grounds. Robs.Bankr. 395; Coll Bankr. 247. * * * In bankruptcy, however, the beneficiaries are not the bankrupt, but the creditors. For that reason the law gives to them alone the choice of trustee; the bankrupt has no part in it, because presumably he has no interest in it; and it is scarcely consistent with that situation, that the bankrupt who" }, { "docid": "4499509", "title": "", "text": "reached, a tax has to be found. Following its earlier ruling, the Supreme Court held the Arkansas. Unemployment Compensation law to be a taxing act. We have no doubt that they would equally so hold under the Bankruptcy Act. The judgments of the District Court are reversed. We agree with the District Court that the statute applicable is the Bankruptcy Act as amended by the so-called Chandler Act, 11 U.S.C.A. § 104, sub. a; In re Old Algiers, 2 Cir., 100 F.2d 374; In re Philadelphia & Reading Coal & Iron Co. (Appeal of Schrager), 3 Cir., 105 F.2d 357; cf. Applicability of Chandler Act to Pending Reorganizations, 33 Illinois Law Review 462 (note). Such a ruling of course eliminates any incorporation of the state priority laws, Bankruptcy — Priority of Tax Claims — Social Security Contribution, 40 Columbia Law Review 1241 (note). In re Umans Bleachery, Inc., D.C., 34 F.Supp. 694. Cf. Blair, Priority of United States in Equity Receiverships, 39 Harvard Law Review 1, 19. In re Oshkosh Foundry Co., D.C., 28 F.Supp. 412; In re Willett-Baker Lumber Co., D.C., 31 F.Supp. 130; In re Mid America Co., D.C., 31 F.Supp. 601; In re James Mytinger, D.C., 31 F.Supp. 977; In re De Graw Motor Co., 4 Prentice Hall Unemployment Ins. Serv. Neb. para. 27,581, p. 27, 111; In the Matter of Siegelbaum’s Inc., D.C., 38 F.Supp. 1009; In re Independent Automobile Forwarding Corp., 2 Cir., 118 F.2d 537; cf. In re Lambertville Rubber Co., 3 Cir., 111 F.2d 45; In re Sixty-Seven Wall St. Restaurant Corp., D.C., 23 F.Supp. 672; City of New York v. Feiring, May 26, 1941, 61 S.Ct. 1028, 85 L.Ed. -; Bankruptcy — Priorities—Sales Tax Claim Against Bankrupt Vendor Held Not Entitled to Priority, 54 Harvard Law Review 1390. In fact only the dictum of one district judge who afterwards reversed himself supports a contrary view. In re Mid America Co., D.C., 31 F.Supp. 601, 604; In Re Mosby Coal & Mining Co., D.C., 24 F.Supp. 1022; In re Lechtman Printing Co., D.C., 38 F.Supp. 1008. N.J.R.S. 43:21 — 14, as amended (1939)" }, { "docid": "11634795", "title": "", "text": "§ 1071], which also repealed section 13 [c. 541^ 30 Stat. 550 (1898)]. Section 671 of Chapter XIII is similar to the repealed section 13, 11 U.S.C.A. § 31, which provided: “The judge may, upon the application of parties in interest filed at any time within six months after a composition has been confirmed, set the same aside and reinstate the case if it shall be made to appear upon a trial that fraud was practiced in the procuring of such composition, and that the knowledge thereof has come to the petitioner since the confirmation of such composition.” (Emphasis added.) In re Isidor Klein, Inc., 2 Cir., 1927, 22 F.2d 906, held that section 13 contained the only grounds for setting aside an order confirming a plan for composition. There the court relied upon the reasoning set forth In re Rudnick, D.C.D.Mass.1899, 93 F. 787, in which, after concluding that section 13 limited the more general provisions of section 2(9), the court said, at page 789: haps a ease may be imagined, not within the terms of section 13 of the latter act, where this court would have jurisdiction to vacate its decree of confirmation improvidently rendered; but, plainly, congress did not contemplate that a composition should be set aside on the ground that a creditor had failed to get notice of the proceedings because his address was misstated in the bankrupt’s schedule by mistake.” “Per- Petitions to set aside orders of discharge involve a similar problem, namely, the proper construction and application of section 15 of the Bankruptcy Act, 11 U.S.C.A. § 33. Many cases hold that courts of bankruptcy possess a general equity jurisdiction to set aside discharges where equitable grounds other than fraud (e. g., mistake, inadvertence, surprise or excusable neglect) are shown in an application seasonably made. Sherman & Son v. Corin, 1 Cir., 1934, 73 F.2d 468; Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; In re Louisville Nat. Banking Co., 6 Cir., 1908, 158 F. 403; In re Goldenberg & Halbert, D.C.E.D.Pa.1923, 286 F. 292; In re Applegate, D.C.S.D.N.Y.1916, 235 F. 271. A" }, { "docid": "8644288", "title": "", "text": "no power to modify the discharge is not well taken. It may be that appellees invoked the wrong section when they purported to base their petitions on section 2(a) (8) of the Act, 11 U.S.C. § 11(a) (8). Very possibly the authorization to “reopen estates for cause shown” afforded by this section refers to reconsideration of matters pertaining to the administration, liquidation, and distribution of the debtor’s assets, see, e.g., Tuffy v. Nichols, 2 Cir., 1941, 120 F.2d 906; In re United Brick & Tile Co., D.Del., 1950, 94 F.Supp. 269, and not to the discharge. We need not decide this question, for the court had ample power to modify the discharge quite apart from this section. In stating broadly that there is no “provision of the Bankruptcy Act authorizing amendment of a discharge,” appellant makes no mention of section 2(a) (12), 11 U.S.C. § 11(a) (12), which in terms authorizes the court to “ * * * set aside discharges and reinstate the cases,” or of section 15, 11 U.S.C. § 33, or of section 38(4), 11 U.S.C. § 66(4). We have two questions. The first is whether a discharge cannot be set aside unless the provisions of section 15 are met. We consider the better view to be that this section is not a limiting provision. Rash v. Metzger, 3 Cir., 1929, 31 F.2d 424; see In re Pope, N.D.Ohio, 1951, 101 F.Supp. 503. Cf. In re Seiden, 2 Cir., 1949, 174 F.2d 586. Contra, In re Aasand, D.N.D., 1925, 7 F.2d 135. A discharge is a judgment, and by equitable principles there should be various grounds on which, by proper application, a party may be relieved. Cf. May v. Fidelity & Deposit Co. of Maryland, 10 Cir., 1961, 292 F.2d 259; Harris v. Warshawsky, 2 Cir., 1950, 184 F.2d 660. Indeed, some courts have held that in the peculiar situation of the bankrupt’s obtaining a discharge of a debt to which, because of prior proceedings, he had no right, revision could be had for the asking. In re Seiden, supra; In re Finkel-stein, E.D.N.Y., 1945, 62 F.Supp." } ]

[ { "docid": "22537048", "title": "", "text": "has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” All concede that petitioner was at least 18 years old when the events leading to the indictment occurred and that he then had at least two prior felony convictions for crimes of violence, thereby satisfying the first and third elements in the definition of career offender. It is the second element in this definition, the requirement that the predicate offense be a crime of violence, that gave rise to the ultimate problem in this case. At the time of his sentencing, the Guidelines defined “crime of violence” as, among other things, “any offense under federal or state law punishable by imprisonment for a term exceeding one year that... involves conduct that presents a serious potential risk of physical injury to another.” §4B1.2(1). The United States District Court for the Middle District of Florida found that petitioner’s conviction for the offense of possession of a firearm by a convicted felon, 18 U. S. C. § 922(g), was a crime of violence, satisfying the second element of the career offender definition. Al though the indictment contained other counts, the District Court relied only upon the felon-in-possession offense in applying the career offender provision of the Guidelines. In accord with its conclusions, the District Court sentenced petitioner as a career offender. On appeal, petitioner maintained his position that the offense relied upon by the District Court was not a crime of violence under USSG §§4B1.1 and 4B1.2(1). The Court of Appeals affirmed, holding that possession of a firearm by a felon was, as a categorical matter, a crime of violence. 943 F. 2d 1268, 1271-1273 (CA11 1991). After its decision, however, Amendment 433 to the Guidelines Manual, which added a sentence to the commentary to §4B1.2, became effective. The new sentence stated that “[t]he term ‘crime of violence’ does not include the offense of unlawful possession of a firearm by a felon.” USSG App. C, p. 253 (Nov. 1992). See §4B1.2, comment., n. 2. Petitioner sought rehearing, arguing that Amendment 433 should be given retroactive" } ]

[ { "docid": "10967776", "title": "", "text": "if “by [its] nature” it involved a “substantial risk that physical force against the person or property of another may be used.” Id. at 1136; 18 U.S.C. § 3142(a)(4)(B). The Court in Sloan, took note of the split in the circuits at least with regard to whether § 922(g) constituted a crime of violence under the 4B1.2 definition. See Sloan, 820 F.Supp. at 1137. The Court also acknowledged that the 1991 amendment to § 4B1.2, which concluded that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon, resolved much of the confusion at least with regard to sentencing. Id. at 1137 n. 6. In refusing to extend this principle to the pretrial detention context, the Court in Sloan found significant distinctions between pretrial detention and sentencing. In particular, the Court in Sloan contrasted pretrial detention with the Seventh Circuit’s analysis of sentencing enhancement in United States v. Chappie, 942 F.2d 439 (7th Cir.1991). Chap-pie involved an interpretation of the Sentencing Guidelines where the Court refused to find that possession without some overt act was a crime of violence. 942 F.2d at 441. As the Court in Sloan noted, the Court in Chappie was interpreting the definition of “crime of violence” provided in the Sentencing Guideline 4B1.2, and not the definition from 18 U.S.C. § 3156(A)(4). The Sloan Court refused to adopt the reasoning of Chappie for several reasons including that the two definitions at issue were not identical, and the contexts in which they were applied were significantly different. Therefore, according to Shan the reasoning of the sentencing cases did not control in a Bail Reform Act case. The Court in Shan was persuaded that the differing circumstances of a pretrial detention determination and a sentencing enhancement determination required different treatment. Moreover, an interpretation of § 3156(a)(4), should be consistent with interests and purposes to be served by the detention determination. According to the Court: [a]s discussed below, Congress has declared that because felons in possession of firearms are a threat to the safety of society, they are permanently barred" }, { "docid": "20215431", "title": "", "text": "5-6 (1st Cir.2008) (“It seems self-evident to us that a prostituted child ... faces more and greater risks than does a seduced child, including the dual risk of physical abuse by either her pimp or her client”); United States v. Patterson, 576 F.3d 431, 442 (7th Cir.2009) (“[I]t is ‘surpassingly difficult to see how burglary could be treated as a violent crime yet child [sex] trafficking exempted’ ”). Willoughby makes an oblique but thoughtful argument in response. He points out that 18 U.S.C. § 3142-entitled “Release or detention of a defendant pending trial” — requires the district court to hold a detention hearing upon the government’s motion in any case that involves “a crime of violence, a violation of § 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed[.]” 18 U.S.C. § 3142(f)(1)(A). And Willoughly contends that the reference to § 1591 in this subsection would be unnecessary — and thus would be surplusage — if a violation of § 1591 is categorically a crime of violence. The problem with this argument is that the definition of “crime of violence” as used in § 3142 is different from the definition in § 4B1.2(a)(2). Specifically, the definition of “crime of violence,” as used in § 3142, does not include anything like the residual clause of § 4B1.2(a)(2). See 18 U.S.C. § 3156(a)(4). And the residual clause is what gives § 4B1.2 much of its breadth. That a violation of § 1591 is a crime of violence under the residual clause of § 4B1.2(a)(2), therefore, does not necessarily mean that it is a crime of violence as defined by § 3156(a)(4). Thus, the reference to § 1591 in § 3142 is not surplusage. 3. Willoughby argues that his sentence was substantively unreasonable. We review the reasonableness of his sentence for an abuse of discretion, “tak[ing] into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Here, the" }, { "docid": "4200462", "title": "", "text": "the concept of risk would “bring within the statute’s scope a host of other crimes that do not seem to belong there____ [H]ow could one exclude, say, drunken driving or unlawful transportation of hazardous chemicals or other risk-creating crimes” that could very easily be expected to “presentí ] a serious potential risk of physical injury to anotherf?]” Id. at 225. Like Judge Breyer, this Court rejects the argument that the status of an individual — being a convicted felon — transforms the otherwise passive offense of possession into a crime of violence. Neither the act of possessing a weapon nor the fact of being a felon is in itself a crime of violence. Neither has as an element of the offense the use of physical force, 18 U.S.C. § 3156(a)(4)(A), and neither by its nature involves a risk of physical force in its commission. 18 U.S.C. § 3156(a)(4)(B). There is plenty of room in the Bail Reform Act for judgments about an individual’s character, trustworthiness, ties to the community, dangerousness and other individualized factors. These assessments, however, take place under 18 U.S.C. §§ 3142(e) and (g). Section 3142(f), by contrast, is governed by the categorical approach, which does not permit a court to adjust the meaning of a “crime of violence” based on the identity, background or proclivities of the defendant. To put it another way, Section 3142(f)(1)(A) applies equally to a convicted terrorist in possession of a submachine gun and an antitrust bidrigger in possession of a sporting rifle convicted of conspiracy or mail fraud. Without more, neither one can be detained without bail merely because they have been charged with the simple possession of a weapon. This Court agrees with Judge Hogan and others who have noted that the eonsiderations that go into setting bail differ from those that govern sentencing. See, e.g., United States v. Washington, 907 F.Supp. at 484; United States v. Sloan, 820 F.Supp. at 1137-39. But the presumption of innocence, which is in full force and operation when a detention determination is made under the Bail Reform Act but not at the time of" }, { "docid": "10967775", "title": "", "text": "while pending trial, (3) within five years of the previous conviction. While these three elements may be satisfied, the government has not presented such evidence to the Court, and the government bears the burden of demonstrating that each statutory element is satisfied in order to trigger the presumption. In this ease, that has simply not been done. B. Crime of Violence The next issue before the Court is the question of whether possession by a felon of a firearm is a crime of violence for purposes of the Bail Reform Act. The government argues that such possession is a crime of violence, and presents to the Court case authority in support of the proposition including United States v. Sloan, 820 F.Supp. 1133 (S.D.Ind.1993). In that case the Court concluded that being a felon in possession of a firearm was a crime of violence. Id. at 1136. The Court reasoned that since being a felon in possession of a firearm did not include an element of physical force, it could only constitute a crime of violence if “by [its] nature” it involved a “substantial risk that physical force against the person or property of another may be used.” Id. at 1136; 18 U.S.C. § 3142(a)(4)(B). The Court in Sloan, took note of the split in the circuits at least with regard to whether § 922(g) constituted a crime of violence under the 4B1.2 definition. See Sloan, 820 F.Supp. at 1137. The Court also acknowledged that the 1991 amendment to § 4B1.2, which concluded that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon, resolved much of the confusion at least with regard to sentencing. Id. at 1137 n. 6. In refusing to extend this principle to the pretrial detention context, the Court in Sloan found significant distinctions between pretrial detention and sentencing. In particular, the Court in Sloan contrasted pretrial detention with the Seventh Circuit’s analysis of sentencing enhancement in United States v. Chappie, 942 F.2d 439 (7th Cir.1991). Chap-pie involved an interpretation of the Sentencing Guidelines where the Court refused" }, { "docid": "5542603", "title": "", "text": "bound by the Commission’s comment that unlawful possession of a firearm by a felon is not a crime of violence under, § 4B1.2. Still, to- the extent that opinions concluding that § 4B1.2's definition of a crime of violence does not include violations of § 922(g) are determined by the binding force of the Sentencing Commission's interpretations, and not by the courts’ independent judgments derived from the Guideline’s language, Congress' intentions, or the context of decision, they carry no more persuasive force than the body of pre-amendment cases to the contrary. The 1991 amendment does not affect the persuasive weight, if any, to be given Chappie's holding, however, as the case was decided before the amendment and followed consistent circuit dicta. . While convicted defendants may be on release awaiting sentencing, it is more than likely that a defendant convicted of any of the offenses listed in 18 U.S.C. § 3142(f)(1) or presenting a serious risk of flight or danger under § 3142(f)(2) (i.e., those circumstances in which pretrial detention is available) is in custody pending sentencing. . The differences between Guideline 4B1.2's and § 3156(a)(4)'s definitions of crime of violence support giving, a broader interpretation of crime of violence in the pretrial detention context. Guideline 4B1.2’s definition includes only felonies which have as an element, the use, attempted use, or threatened use, of physical force, § 4B1.2(l)(i), whereas § 3156(a)(4) includes any offenses, including misdemeanors, which involve the actual, attempted, or threatened use of physical force, § 3156(a)(4)(A), such as the present defendant's March 27, 1992 conviction for \"Intimidation\" which, according to the Pretrial Services Report, was reduced to a Class A misdemeanor and involved personal and explicit threats to kill his girlfriend’s mother. Secondly, while the Guideline definition only includes those offenses that involve physical force or injury against \"the person of another”, the Bail Reform Act definition of a crime of violence encompasses violent offenses that involve physical force against \"the person or property of another.\" Further, the Guideline lists burglary “of a dwelling\" as a crime of violence, while the Bail Reform Act’s definition would presumably" }, { "docid": "1414516", "title": "", "text": "the government maintains that legislative history of sections 3142 and 922(g) supports the general propositions that felons should not have guns and violent criminals should not obtain bail. However, none of the cited materials address the question under review, which is whether felons who possess firearms have thereby committed a crime of violence sufficient to warrant pretrial detention. Cf. Doe, 960 F.2d at 225-26. Given the plain statutory language, any ambiguous legislative history must yield to the words Congress used in the statute itself. See, e.g., Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 474, 139 L.Ed.2d 352 (1997). Congress is of course free to amend § 3142, but this court is bound by the language that Congress has so far provided. Our rejection of the government’s interpretation is consistent with the treatment of “crimes of violence” at sentencing. First, under the Sentencing Guidelines, certain “career offenders” may receive enhanced sentences based upon present and past “erime[s] of violence.” U.S.S.G. § 4B1.1. The Guidelines define “crime of violence” as: 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 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). In an application note binding on federal courts, the Sentencing Commission has excluded felon-in-possession offenses from this definition. See id. § 4B1.2 application note 1; Stinson v. United States, 508 U.S. 36, 47, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Amicus and Singleton reason that because § 4B 1.2(a) parallels § 3156(a)(4), the court should read them consistently and exclude felon-in-possession offenses from the latter. Of course, the Sentencing Commission’s interpretation of § 4B 1.2(a) is not binding here, both because the Commission lacks authority to interpret § 3156 and because its analysis is not “compelled” by § 4B1.2(a), but is merely a sufficiently plausible interpretation to warrant deference" }, { "docid": "5542582", "title": "", "text": "offenses may constitute crimes of violence only if, by their nature, they involve a “substantial risk that physical force against the person or property of- another may be used.” . 18 U.S.C. § 3142(a)(4)(B). In United States v. Chapple, 942 F.2d 439 (7th Cir.1991), the Seventh Circuit addressed the definition -of a “crime of violence.” The defendant in Chappie was charged under 18 U.S.C. § 922(g) for being a felon and having a loaded handgun tucked into the waistband of his trousers while riding in a taxi. The Court declined to follow decisions holding that possession alone constitutes a crime 'of violence and refused to extend the definition beyond “the general rule” that “possession of. a weapon plus some overt action implying or indicating its use is a crime of violence.” Id. at 441. Even given Chappie’s broad interpretation of “overt action”, there is no evidence or allegation in this case that the defendant made any overt act implying.or indicating use of the subject sawed-off shotgun. I conclude, however, that Chappie is distinguishable from this case. a. The Court in Chappie was interpreting the definition of a “crime of violence” provided in Sentencing Guideline 4B1.2, not the definition in 18 U.S.C. § 3156(a)(4) which applies in the pretrial release/detention context. The definitions are not identical and the contexts are significantly different. Chappie, therefore, does not directly control the present determination. b. There are convincing reasons for not following Chappie’s approach in the pretrial release/detention context. At the time Chap-pie was decided, Sentencing Guideline 4B1.2 defined a crime of violence in these terms: The term “crime of violence” means any offense under federal or state law punishable by imprisonment for a term exceeding one year that — • (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary 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. United States Sentencing Commission, Guidelines Manual, § 4B1.2 (Nov. 1990). Some circuit courts of" }, { "docid": "1414519", "title": "", "text": "U.S.C. § 924(e) for § 922(g) offenders who have committed three “violent felon[ies].” The term “violent felony” in § 924(e) is similar to the term “crime of violence” in § 4B1.2(a), see 18 U.S.C. § 924(e)(2)(B), and it too has been interpreted to exclude felon-in-possession offenses. See United States v. Oliver, 20 F.3d 415, 417-18 (11th Cir.1994); Doe, 960 F.2d at 223-26. Cf. United States v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir.1992). If § 922(g) violations are not a predicate for lengthening the sentence of convicted armed recidivists, it would be incongruous to hold that the offense nevertheless warrants detention of merely accused armed recidivists. Each context requires the court to implement a congressional policy favoring incapacitation of violent offenders, and we see no reason to suppose that § 922(g) offenses trigger Congress’s concern in the bail context but not in the sentencing context. Accordingly, because we conclude that § 3156(a)(4)(B) makes clear that Congress did not include possession of a firearm by a felon within the category of offenses triggering the government’s right to a detention hearing under § 3142(f)(1), we hold that Singleton has not been charged with a crime of violence warranting pretrial de tention, and we therefore affirm the order of the district court. . Section 922(g) provides in relevant part: It shall be unlawful for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting interstate commerce, any firearm or ammunition. 18 U.S.C. § 922(g). . Section 3142(f) provides in part that: The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community — (1) upon motion of the attorney for the Government, in a case that involves — • (A) a crime of violence; (B) an offense for which the maximum sentence is life imprisonment or death; (C) an offense for" }, { "docid": "12381280", "title": "", "text": "the pretrial detention context, the term “crime of violence” should have a broader scope than it does with respect to sentencing issues. Sloan, 820 F.Supp. at 1139; see also Washington, 907 F.Supp. at 485 (“this Court is not convinced that the recommendations of the Sentencing Commission, notwithstanding its binding force in the sentencing context, should ever be extended beyond that realm”). In addition, some of the cases dealing with § 922(g)(1) offenses .in the context of sentencing have looked to the specific facts surrounding the offense, an approach that is not appropriate here. For instance, in United States v. Chapple, 942 F.2d 439, 440 (7th Cir.1991), the court held that “the mere possession of a firearm does not constitute the crime of violence needed under the Sentencing Guidelines to designate him a career offender.” In reaching that conclusion, however, the court relied heavily on the facts of the case, noting that there was no evidence that the defendant had displayed, touched, gestured toward or referred to his gun. Id. at 442. For the reasons already stated, such a fact-specific approach should not be used when determining whether to hold a detention hearing pursuant to § 3142(f). See Aiken, 775 F.Supp. at 857. For all these reasons, then, I conclude that possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) constitutes a “crime of violence” as that term is defined in 18 U.S.C. § 3156(a)(4)(B). Accordingly, the court must hold a detention hearing pursuant to 18 U.S.C. § 3142(f)(1). B. Detention for Crime of Violence Having determined that the Government properly moved for detention because § 922(g)(1) constitutes a crime of violence, I must next determine whether detention is warranted in this particular case. That, of course, requires me to consider all the factors in 18 U.S.C. § 3142(g), to determine whether there are conditions of release that would reasonably assure the appearance of the defendant and the safety of another person or the community. The burden of proof is on the Government to prove by a preponderance of the evidence that there are no conditions" }, { "docid": "10967767", "title": "", "text": "law since 1990. The defendant’s original pro se motion principally argued that possession by a felon of a weapon is not a “crime of vio lence.” The supplement to the defendant’s motion confined the defendant’s argument to two narrow issues. First, the defendant argued that the Magistrate erred in applying the statutory presumption in concluding that detention was appropriate. Second, in an argument that was initially raised by the defendant pro se, the defendant argued that this Court should adopt the holding in United States v. Powell, 813 F.Supp. 903 (D.Mass.1992), which held that 18 U.S.C. § 922(g) is not a crime of violence' under 18 U.S.C. § 3156(a)(4)(B). Moreover, the defendant argues that such a holding is mandated by a 1991 amendment to a commentary of the sentencing guidelines which specifically excluded possession of a weapon by a felon from the § 4B1.2(1) definition of a crime of violence. See United States Sentencing Commission Guidelines Manual § 4B1.2(1), Application Note 2. The application of that particular guideline commentary was subsequently made binding upon the Federal Courts by the Supreme Court in Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). In response, the government argues that the defendant’s conviction in 1993 for armed robbery is sufficient, by itself, to trigger the statutory presumption of detention under 18 U.S.C. § 3142(e). Moreover, the government argues that careful consideration of the four factors listed in § 3142(g) demonstrates that the defendant has not met its burden in overcoming that presumption. Second, the government argues that possession of a weapon by a felon is a crime of violence for purposes of §§ 3156(a)(4) and 3142(f)(1). In support of its motion the government directs the Court’s attention to the same four cases previously relied on by the Magistrate Judge, as well as the additional case United States v. Sloan, 820 F.Supp. 1133 (S.D.Ind.1993). The Court is aware of only one case in this Circuit that has addressed the question of whether possession of a gun by a felon is a “crime of violence” for purposes of the Bail" }, { "docid": "3942493", "title": "", "text": "this conclusion, the Court offered four independent arguments explaining why possession of a firearm by a felon, by its very nature, “involve[s] the substantial risk of physical force against another person[.]” Cf 1984 U.S.Code Cong. & Admin.News at 3487. The Court noted that felons are “more likely to use firearms in an irresponsible manner.” Jones, 651 F.Supp. at 1310. Also, felons in possession of firearms are acutely aware that such activity is illegal, so their acts of possessing weapons illustrate knowing disregard for legal obligations imposed upon them. Id. Moreover, felons are more likely to commit crimes, so their possession of guns simply compounds the likelihood that criminal activity of convicted felons will be accompanied by use of firearms. Id. Finally, the illegal possession of a gun is an on-going process that often is not ended voluntarily, but only through law enforcement intervention. Id. For all of these reasons, the Court concluded that firearm possession by felons, “by its nature,” involves “substantial risk of physical force against another person.” See, e.g., 1984 U.S.Code Cong. & Admin.News at 3487; 18 U.S.C. § 3156(a)(4)(B). Thus, the inquiry in Jones focused on the nature of firearm possession by convicted felons in general; the product of this generalized analysis was the classification of the crime as one “of violence.” See Jones, 651 F.Supp. at 1310 (applying 18 U.S.C. § 3156(a)(4)). B. Sentencing Guideline Commentary Section 4B1.2(1) of the sentencing guidelines expressly borrows the “crime of violence” definition from 18 U.S.C. § 16. See Guidelines Manual § 4B1.2(1). The Sentencing Commission, therefore, started from the same statutory language as the Jones opinion in identifying “crimes of violence.” The Sentencing Commission’s application of the term, however, varies to a certain degree from the concept derived in Jones. Applying 18 U.S.C. § 16, the Sentencing Commission produced the following interpretation: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction of an escape accomplished by" }, { "docid": "10967766", "title": "", "text": "to the fourth factor, the nature and seriousness of the danger to any person, the Magistrate Judge found the defendant to be a career criminal. Accordingly, the Magistrate Judge concluded that defendant’s pretrial release would constitute an unreasonable risk of danger to the community. On October 18, 1995, the defendant filed a pro se motion with this Court seeking review and revocation of the Magistrate’s Order. That motion was later supplemented by the defendant on November 8, 1995. The government filed an opposition to defendant’s motion of November 1, 1995, which it supplemented with additional authority on November 8, 1995. A hearing was held on November 8, 1995. The defendant raises the following arguments in support of its motion. In its original pro se motion defendant argued that (1) the Magistrate erred in concluding that defendant was charged with a crime of violence; (2) the Magistrate’s factual findings were unsupported by the evidence; (3) defendant lacked competent legal counsel; (4) the defendant needed to care for his daughter; and (5)that defendant has abided by the law since 1990. The defendant’s original pro se motion principally argued that possession by a felon of a weapon is not a “crime of vio lence.” The supplement to the defendant’s motion confined the defendant’s argument to two narrow issues. First, the defendant argued that the Magistrate erred in applying the statutory presumption in concluding that detention was appropriate. Second, in an argument that was initially raised by the defendant pro se, the defendant argued that this Court should adopt the holding in United States v. Powell, 813 F.Supp. 903 (D.Mass.1992), which held that 18 U.S.C. § 922(g) is not a crime of violence' under 18 U.S.C. § 3156(a)(4)(B). Moreover, the defendant argues that such a holding is mandated by a 1991 amendment to a commentary of the sentencing guidelines which specifically excluded possession of a weapon by a felon from the § 4B1.2(1) definition of a crime of violence. See United States Sentencing Commission Guidelines Manual § 4B1.2(1), Application Note 2. The application of that particular guideline commentary was subsequently made binding upon the" }, { "docid": "5542602", "title": "", "text": "1991 amendment was a four-years after-the-fact creation of \"administrative history” which was most likely added in response to contrary judicial interpretations. United States v. Stinson, 957 F.2d 813, 814-15 (11th Cir.1992). As with the standards governing reliance on legislative history, such post hoc statements, and,'consequently, the judicial decisions relying on them, would be entitled to little, if any, weight, especially when compared to the substantial body of pre-amendment judicial precedent to the contrary. However, three days ago, while this Entry was in process, the Supreme Court handed down its decision in the appeal of Stinson. United States v. Stinson, - U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Rejecting analogies of the Sentencing Commission's commentaries to legislative histoiy or agency construction of federal statutes, the Court treated them as agency interpretations of its own legislative rules which are binding on the courts unless contrary to the Constitution or a federal statute, or plainly erroneous or inconsistent with the regulation. Id. The Court found that none of these exceptions existed and held that courts are bound by the Commission’s comment that unlawful possession of a firearm by a felon is not a crime of violence under, § 4B1.2. Still, to- the extent that opinions concluding that § 4B1.2's definition of a crime of violence does not include violations of § 922(g) are determined by the binding force of the Sentencing Commission's interpretations, and not by the courts’ independent judgments derived from the Guideline’s language, Congress' intentions, or the context of decision, they carry no more persuasive force than the body of pre-amendment cases to the contrary. The 1991 amendment does not affect the persuasive weight, if any, to be given Chappie's holding, however, as the case was decided before the amendment and followed consistent circuit dicta. . While convicted defendants may be on release awaiting sentencing, it is more than likely that a defendant convicted of any of the offenses listed in 18 U.S.C. § 3142(f)(1) or presenting a serious risk of flight or danger under § 3142(f)(2) (i.e., those circumstances in which pretrial detention is available) is in custody" }, { "docid": "10967768", "title": "", "text": "Federal Courts by the Supreme Court in Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). In response, the government argues that the defendant’s conviction in 1993 for armed robbery is sufficient, by itself, to trigger the statutory presumption of detention under 18 U.S.C. § 3142(e). Moreover, the government argues that careful consideration of the four factors listed in § 3142(g) demonstrates that the defendant has not met its burden in overcoming that presumption. Second, the government argues that possession of a weapon by a felon is a crime of violence for purposes of §§ 3156(a)(4) and 3142(f)(1). In support of its motion the government directs the Court’s attention to the same four cases previously relied on by the Magistrate Judge, as well as the additional case United States v. Sloan, 820 F.Supp. 1133 (S.D.Ind.1993). The Court is aware of only one case in this Circuit that has addressed the question of whether possession of a gun by a felon is a “crime of violence” for purposes of the Bail Reform Act. That case, United States v. Houston, Crim.A. No. 93-127, 1993 WL 328050 (D.D.C. April 16, 1993), involved, like this case, possession by a felon of a firearm, and held “that the possession of an unregistered firearm by a felon constitutes a crime of violence.” Id. at *1. That case, however, pre-dated the Supreme Court’s opinion in Stinson, and failed to address the impact of the earlier amendment to the Sentencing Guideline definition of crime of violence, and its application to the Bail Reform Act. In light of the apparent difference of opinion among district courts, and the lack of controlling precedent in this Circuit, this Court will address the issue now. II. DISCUSSION In reviewing the determination of the Magistrate regarding pretrial detention the District Court may make a de novo determination whether detention is proper. United States v. Dellcer, 757 F.2d 1390 (3rd Cir.1985); United States v. Clark, 865 F.2d 1433, 1437 (4th Cir.1989). A. Presumption of Detention Before considering whether a felon’s possession of a gun is a crime of violence" }, { "docid": "10967785", "title": "", "text": "Reform Act ordering a defendant held without bond is essentially a two stage process. First, under § 3142(f) a judicial officer will hold a detention hearing only upon finding one of the threshold standards, such as the offense is a “crime of violence,” is met. If, and only if, the court makes this threshold finding does the court proceed to the second stage, consideration of the factors under § 3142(g) to determine whether the defendant presents a danger to the community or is a flight risk. This is the appropriate place to make a finding that this defendant is dangerous or not. Requiring a court to consider overt acts or the associated conduct of a defendant at the earlier stage, as Chapple suggests, would essentially mandate the court making a finding that this particular defendant is dangerous prior to a consideration of the factors under § 3142(g). Whether or not possession by a felon of a firearm is a crime of violence should be determined without consideration of particular conduct on the part of the defendant. The Court believes that a felon in possession of a firearm is a “crime of violence” for purposes of the Bail Reform Act. See 18 U.S.C. § 3156(a)(4). As a threshold matter, an offense is a crime of violence only if the risk of violence is inherent in the nature of the crime, regardless of whether there was a risk of violence or actual violence during the commission of the offense. With that in mind, this Court agrees with those courts that have distinguished pretrial detention from sentencing — this Court believes context does matter. There is a significant difference between sentencing enhancement and pretrial detention. Moreover, this Court is not convinced that the recommendations of the Sentencing Commission, notwithstanding its binding force in the sentencing context, should ever be extended beyond that realm. The Sentencing Commission does not function to address questions beyond those that arise in the administration of the guidelines. Thus, for example, when the Commission decides to define a term for application within the guidelines, its motivation may be totally" }, { "docid": "5542599", "title": "", "text": "a Court proceeding. IT IS SO ORDERED. . The Pretrial Services Report lists the following relevant convictions against the defendant: (1) burglary and attempted burglary, Marion County, Indiana, March 13, 1986; (2) resisting law enforcement, Marion County, Indiana, March 8, 1991; (3) criminal recklessness (involving, in part, pointing a shotgun at an individual), Marion County, Indiana, October 10, 1991; and (4) intimidation (involving, in part, making death threats), Hendricks County, Indiana, March 27, 1992. . \"... any overt action by a defendant pointing a weapon, drawing a weapon, openly displaying a weapon, brandishing a weapon, holding a weapon, gesturing towards a weapon, or any act other than mere passive possession, would cross that line and present a sufficient potential for physical injury to constitute a crime of violence....” Chappie, 942 F.2d at 442. . According to the affidavit attached to the Complaint and the testimony at the hearing, the weapon was discovered and seized from underneath a seat cushion of a couch in the defendant’s residence while the defendant was absent. . This is also the current text of § 4B 1.2. United States Sentencing Commission, Guidelines Manual, § 4B1.2 (Nov. 1992), . See also United States v. Doe, 960 F.2d 221 (1st Cir.1992) (holding, for the purposes of 18 U.S.C. § 924(e), that being a felon in possession of a firearm is not a \"violent felony” as defined in 18 U.S.C. § 924(e)(2)(B)). . The Commentary to § 4B1.2 was amended effective November 1, 1991 to include the statement that \"[t]he term 'crime of violence’ does not include the offense of unlawful possession of a firearm by a felon,\" United States Sentencing Commission, Guidelines Manual, § 4B1.2, Application Note 2 (Nov. 1991). United States Sentencing Commission, Guidelines Manual, Appendix C, amendment no. 433 (1992). Before this 1991 amendment, there was a split among the Circuits as to whether being a felon in possession was per se a crime of violence under § 4B1.2. Most post-amendment decisions, however, hold that a violation of § 922(g) is not a crime of violence, relying primarily or exclusively on the amendment and often" }, { "docid": "12381281", "title": "", "text": "stated, such a fact-specific approach should not be used when determining whether to hold a detention hearing pursuant to § 3142(f). See Aiken, 775 F.Supp. at 857. For all these reasons, then, I conclude that possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) constitutes a “crime of violence” as that term is defined in 18 U.S.C. § 3156(a)(4)(B). Accordingly, the court must hold a detention hearing pursuant to 18 U.S.C. § 3142(f)(1). B. Detention for Crime of Violence Having determined that the Government properly moved for detention because § 922(g)(1) constitutes a crime of violence, I must next determine whether detention is warranted in this particular case. That, of course, requires me to consider all the factors in 18 U.S.C. § 3142(g), to determine whether there are conditions of release that would reasonably assure the appearance of the defendant and the safety of another person or the community. The burden of proof is on the Government to prove by a preponderance of the evidence that there are no conditions or combinations of conditions that will reasonably assure the presence of the defendant at trial if he is released. United States v. Shakur, 817 F.2d 189, 195 (2d Cir.), cert. denied, 484 U.S. 840, 108 S.Ct. 128, 98 L.Ed.2d 85 (1987); Carter, 996 F.Supp. at 265. The Government has the burden of proving by clear and convincing evidence that the defendant poses a danger to the community. United States v. Chimurenga, 760 F.2d 400, 405-06 (2d Cir.1985); United States v. Santillana, No. 97 CR 108, 1997 WL 394663 *2 (N.D.N.Y. July 10, 1997). I have considered all of the factors under § 3142(g) and I conclude, as I stated orally in open court, that there are no conditions that would reasonably assure the safety of the community and another person. The crime charged in this case is serious. It involves a charge that a convicted felon possessed and sold four semi-automatic guns in August of 1998, for the sum of $2,000. I specifically find that defendant’s sale of four semi-automatic weapons on a street corner" }, { "docid": "7940001", "title": "", "text": "to determine the statutory phrase that is the basis of conviction. Thus, he argues, his conviction is only for possessing a “firearm,” as the statute proscribes; his conviction is not for possessing a sawed-off shotgun, as the indictment’s language charges. This argument ignores the fact that Taylor and its progeny were decided under the Armed Career Criminal Act and did not involve the application of — or even mention — the specific Guidelines commentary at issue here. The commentary, which applies in this case, specifically treats unlawful possession of a firearm by a felon as a crime of violence when the weapon is a sawed-off shotgun. Id. Lipscomb’s proposed standard, if applied here, would render the commentary meaningless for § 922(g) offenses. We do not think the Sentencing Commission intended its commentary to have such an effect. Moreover, had the Sentencing Commission intended the sentencing court to be bound by the statute of conviction, its reference in Application Note 1 to the “conduct set forth (ie., expressly charged) in the count of which the defendant was convicted” would be superfluous. See id. (emphasis added). Thus, applying the commentary of § 4B1.2, as we must, we hold that this conviction, resulting from a plea to an indictment count that specifically charged possession of a sawed-off shotgun as a felon, is for a crime of violence. III. To recap, we hold that for the purpose of § 4B1.2, a conviction is for a crime of violence when the defendant pleads guilty to an indictment count that alleges conduct that presents a serious potential risk of injury to another. Lipscomb, in pleading guilty to an indictment charging him with violating 18 U.S.C. § 922(g) by possessing a sawed-off shotgun — a crime of violence, according to the Guidelines commentary— did just that. The judgment of the district court is AFFIRMED. . The indictment read: Felon in Possession of a Firearm (Violation of 18 U.S.C. § 922(g)(1) and 924(e)(1)) On or about March 20, 2007, in the Dallas Division of the Northern District of Texas, the defendant, Eddie Lamont Lipscomb, having being [sic] convicted" }, { "docid": "10967777", "title": "", "text": "to find that possession without some overt act was a crime of violence. 942 F.2d at 441. As the Court in Sloan noted, the Court in Chappie was interpreting the definition of “crime of violence” provided in the Sentencing Guideline 4B1.2, and not the definition from 18 U.S.C. § 3156(A)(4). The Sloan Court refused to adopt the reasoning of Chappie for several reasons including that the two definitions at issue were not identical, and the contexts in which they were applied were significantly different. Therefore, according to Shan the reasoning of the sentencing cases did not control in a Bail Reform Act case. The Court in Shan was persuaded that the differing circumstances of a pretrial detention determination and a sentencing enhancement determination required different treatment. Moreover, an interpretation of § 3156(a)(4), should be consistent with interests and purposes to be served by the detention determination. According to the Court: [a]s discussed below, Congress has declared that because felons in possession of firearms are a threat to the safety of society, they are permanently barred from possession. 18 U.S.C. § 922(g). A felon, therefore, who possesses a firearm in direct violation of this ban commits a continuing threatening act against society and has already demonstrated the inability of specific legal proscriptions to prevent him from breaking the law. Certainly such persons would be one of the few types of defendants targeted by the Act whose danger at least warrants consideration for detention under § 3142(f)(1)(A). The interpretation of a crime of violence must also recognize the different environment in which the release/detention decision is made when compared to the sentencing environment. Sentencing follows conviction. At that point, there has been full investigation, trial, and determination of the facts; the defendant is in custody and will not be released into the community until after serving a sentence; and there has been an opportunity to extensively investigate all facts relevant to sentencing factors. In the pretrial detention context, by contrast, the Court must decide whether to release a potentially dangerous defendant at the earliest stage of the judicial proceeding.... The decision facing" }, { "docid": "10967769", "title": "", "text": "Reform Act. That case, United States v. Houston, Crim.A. No. 93-127, 1993 WL 328050 (D.D.C. April 16, 1993), involved, like this case, possession by a felon of a firearm, and held “that the possession of an unregistered firearm by a felon constitutes a crime of violence.” Id. at *1. That case, however, pre-dated the Supreme Court’s opinion in Stinson, and failed to address the impact of the earlier amendment to the Sentencing Guideline definition of crime of violence, and its application to the Bail Reform Act. In light of the apparent difference of opinion among district courts, and the lack of controlling precedent in this Circuit, this Court will address the issue now. II. DISCUSSION In reviewing the determination of the Magistrate regarding pretrial detention the District Court may make a de novo determination whether detention is proper. United States v. Dellcer, 757 F.2d 1390 (3rd Cir.1985); United States v. Clark, 865 F.2d 1433, 1437 (4th Cir.1989). A. Presumption of Detention Before considering whether a felon’s possession of a gun is a crime of violence the Court will consider whether the government is correct that a statutory presumption should apply in this case. Defendant argues that the Magistrate erroneously applied the “statutory presumption” in deciding to detain the defendant without bond. The government first appeared to argue that the Magistrate Judge’s finding, that possession by a felon is a “crime of violence,” should be affirmed and that such a finding, by itself, triggered a rebuttable presumption of deten- tíon. The government has subsequently clarified its position, arguing now that the Magistrate Judge’s finding that the defendant had previously been convicted of a “crime of violence” triggered the presumption, and that this finding should be affirmed. Whether or not a rebuttable presumption exists is determined by statute. Under 18 U.S.C. § 3142(e), if “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community, such person shall order the detention of the person before trial.” Id. A rebuttable presumption arises if" } ]

[ { "docid": "22699004", "title": "", "text": "WILLIAM A. FLETCHER, Circuit Judge. Petitioner Arout Melkonian (“Melkoni-an”), an ethnic Armenian and a Christian, lived in Abkhazia, an autonomous region within Georgia, from his birth in 1959 until September of 1992, when he fled across the Russian border to escape kid-naping by ethnic-Abkhaz Separatists. He subsequently left Russia and, in early 1994, entered the United States illegally and applied for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1253(h) (1994). The Immigration Judge (“IJ”) denied his application, and the Board of Immigration Appeals (“BIA”) affirmed. Melkonian timely appealed. I. Governing Law and Standard of Review To establish eligibility for asylum, an applicant must demonstrate his or her status as a refugee. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). A refugee is an alien who is unable or unwilling to return to the country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (1994). Eligibility for asylum based on a well-founded fear of future persecution requires an applicant to satisfy both a sub jective and an objective test. Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998). Applicants satisfy the subjective test by credibly testifying that they genuinely fear persecution by their government, or forces their government is unable or unwilling to control, on account of a statutorily-protected ground. Id. The objective component is satisfied where credible, direct, and specific evidence in the record supports a reasonable fear of persecution. Id. We review factual findings of the IJ and BIA under the “substantial evidence” standard. Singh v. Ilchert (Singh I), 63 F.3d 1501, 1506 (9th Cir.1995). That is, we must sustain factual findings if supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We review questions of law regarding the INA de novo, but give deference to the BIA’s interpretation of the statute. Ladha v. INS, 215 F.3d 889," } ]

[ { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "23012780", "title": "", "text": "incidents in fact were described in the declaration that she filed in support of the application. The IJ also found, in the alternative, (1) that the harm experienced by Petitioner did not rise to the level of persecution; and (2) that there was “no evidence that the government could not control or has not tried to control these criminals.” For those three reasons, the IJ denied Petitioners’ applications for asylum and found that they also failed to meet the higher burdens for withholding of deportation and relief under the Convention Against Torture. The BIA affirmed on the sole ground that “[t]he incidents described by [Petitioner], including episodes of verbal insults and slurs, an attempted attack consisting of a slap in the face, are consistent with incidents of discrimination, but have not been shown to rise to the level of persecution.” This timely petition for review followed. STANDARD OF REVIEW When the BIA conducts an independent review of the IJ’s findings, as it apparently did here, we review the BIA’s decision and not that of the IJ. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). We review the BIA’s denial of asylum for substantial evidence, and we may grant the petition only if the record compels a contrary result. See Nagoulko v. INS, 333 F.3d 1012, 1015-16 (9th Cir.2003). The BIA did not address the IJ’s negative credibility finding. When the BIA’s decision is silent on the issue of credibility, despite an IJ’s explicit adverse credibility finding, we may presume that the BIA found the petitioner to be credible, Maldonado-Cruz v. U.S. Dept. of Immigration and Naturalization, 883 F.2d 788, 792 (9th Cir.1989); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986), and we so presume here. That presumption is particularly reasonable here, because the IJ’s adverse credibility finding is not supported by substantial evidence. DISCUSSION In concluding that the lead Petitioner had suffered only discrimination, the BIA summed up her experience as “including episodes of verbal insults and slurs [and] an attempted attack consisting of a slap in the face.” That description inaccurately minimizes Petitioner’s experience. Against a background" }, { "docid": "19334218", "title": "", "text": "the IJ’s decision insofar as it granted Mu-radin’s request for protection under CAT. The BIA reasoned that although Muradin claimed to fear torture at the hands of the military police, the record did not show that he had been tortured or would likely be tortured upon return to Armenia. Analysis Where the BIA expressly adopts the IJ’s findings and reasoning, as it did in this case with respect to Petitioner’s request for asylum or withholding of removal, we review the decision of the IJ as if it were that of the Board. AV-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). We review for substantial evidence the factual findings underlying the BIA’s determination that Muradin was ineligible for relief under CAT. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.2003). This court must uphold the IJ’s findings and conclusions if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). To prevail, Petitioner must demonstrate that evidence in the record compels reversal. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir.2001). Asylum Muradin first argues that the IJ erred in finding him ineligible for asylum and withholding of removal. To qualify for asylum, an alien must show he is a “refugee” by providing evidence of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Muradin asserts that he was persecuted either on account of his membership in a particular social group, specifically former soldiers, or because of imputed political opinion. In affirming the IJ’s denial of asylum and withholding of removal, the BIA stated, “we agree with the Immigration Judge that the harm the respondent testified he suffered and the fears in the future has not been adequately established to be on account of actual or imputed political opinion, membership in a particular social group, or any other ground protected under the Act.” The IJ, however, did not address Muradin’s claim" }, { "docid": "22668970", "title": "", "text": "SOTOMAYOR, Circuit Judge. Petitioner Nadarjh Ramsameachire (“petitioner” or “Ramsameachire”), a citizen of Sri Lanka and a member of that nation’s ethnic Tamil minority, appeals from the decision of the Board of Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal pursuant to the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231, respectively, and for withholding of removal pursuant to the Convention Against Torture (“CAT”) and its implementing regulations, see 8 C.F.R. § 208.16. At his removal hearing, Ramsameachire testified as to his purported past persecution on the basis of his ethnicity and imputed political beliefs, as well as his fear of further persecution if returned to Sri Lan-ka. The Immigration Judge (“IJ”) determined that Ramsameachire’s testimony at the hearing differed substantially from his prior statements to an asylum officer during his airport interview, and based on these inconsistencies, found that Ramsa-meachire had no well-founded fear of persecution, and had not established that there was any danger that he would be persecuted or tortured if he was removed to Sri Lanka. The IJ concluded that Ram-sameachire’s lack of credibility therefore precluded relief under both the INA and CAT. The BIA affirmed the IJ’s decision, including the credibility determination. Ramsameachire now challenges the basis for the BIA’s adverse credibility finding, arguing that his airport statement cannot provide the sole basis for discounting his hearing testimony. He also argues that even if the credibility determination was correct, the BIA and IJ should not have relied upon it in rejecting his alternative basis for fearing persecution, that Tamils as a group are subject to a pattern or practice of persecution. Finally, he challenges the rejection of his CAT claim, asserting that the BIA and IJ were required to consider his proffered evidence of the conditions in Sri Lanka before concluding that he was not entitled to withholding of removal pursuant to CAT. We hold that (1) although airport statements can, in some circumstances, be unreliable, the BIA was entitled to consider Ramsameachire’s airport interview statements in making its credibility determination, because the airport interview was carefully conducted with" }, { "docid": "23104643", "title": "", "text": "that Vukmirovic had “engaged in persecution of others on the basis of race and religion” and was thus “barred from receiving asylum under section 101(A)(42)(B) of the Act.” The IJ denied the motion to reopen because Vuk-mirovic had not complied with Matter of Lozada, but did not address the relief Vukmirovic sought under the Convention Against Torture. The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision under streamlining regulations. 8 C.F.R. § 1003.1(a)(7). Vukmirovic petitions us for review from the BIA’s summary affirmance of the IJ’s denial of his application for asylum and withholding of removal. He challenges the BIA’s streamlining process as a violation of due process and -on the basis that streamlining was inappropriate under the regulations in this case. He also challenges the merits of the IJ’s decision on his asylum application and the decision denying his motion to reopen. Because removal proceedings against Vukmirovic were pending before April 1997, and the BIA issued its final decision after October 1996, we apply the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). We therefore have jurisdiction over the asylum claim under 8 U.S.C. § 1105a. Under IIRIRA’s transitional rules, we have jurisdiction to consider Vukmirovic’s challenges to the denial of his motion to reopen. Rodriguez-Lariz v. INS, 282 F.3d 1218, 1223 (9th Cir.2002). Because the BIA adopted the decision of the IJ as the final agency determination of the case, we review the IJ’s decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 851(9th Cir.2003); Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir.1995). We review the decision for “substantial evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s decision that an applicant is ineligible for asylum can only be reversed where “a reasonable fact-finder would have to conclude that the requisite fear of persecution existed.” Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir.2003) (quoting Chand v. INS, 222 F.3d 1066, 1073 (9th Cir.2000)). However, we" }, { "docid": "23344900", "title": "", "text": "PER CURIAM. Petitioner Zhou Yi Ni, a native and citizen of the People’s Republic of China (“China”), petitions this Court for review of an October 28, 2002 order of the Board of Immigration Appeals (“BIA”) affirming a November 23, 1999 decision by an immigration judge (“IJ”) that denied petitioner’s application for asylum and withholding of removal. Petitioner also appeals the BIA’s denial of a remand for consideration of his claims under the Convention Against Torture (“CAT”), adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; 8 C.F.R. § 208.16. We begin by addressing petitioner’s application for asylum and withholding of removal. Where, as here, the BIA summarily affirmed the IJ’s decision to deny asylum, we review the IJ’s decision rather than the BIA’s order. See Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004). Petitioner’s asylum claim rests on the persecution he allegedly suffered for violating China’s coercive family planning policy. In particular, petitioner testified that his wife was involuntarily sterilized by China’s authorities after the birth of the couple’s second child. Petitioner further claimed that, upon return to China, he would be persecuted for having fathered two children. The IJ found petitioner not credible, based in part on serious contradictions between petitioner’s account of his wife’s sterilization and his wife’s own asylum application. The IJ also found that petitioner had not established that he had himself suffered past persecution or that he had a well-founded fear of future persecution. Our review of the IJ’s credibility findings is highly deferential, see Zhang v. INS, 386 F.3d 66, 73-74 (2d Cir.2004), and the IJ’s “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). ‘Where the IJ’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the asylum applicant about matters material to his claim of persecution, or on contradictory evidence or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude" }, { "docid": "22908115", "title": "", "text": "rather than her father-in-law, had become the subject of attacks because her father-in-law owned weapons and lived in what was essentially a “fortress,” so the attackers could not get to him. In addition to the evidence of particular attacks on their family, the Thomases also submitted evidence of the widespread crime problem in South Africa. The IJ did not make an adverse credibility finding, but nevertheless denied the Thomases’ request for asylum and withholding of removal, finding that Michelle failed to meet her burden of proving that she and her family suffered persecution in South Africa based “on any of the five statutory grounds, whether it is race or political opinion.” Although the asylum application indicated both membership in a social group and political opinion as grounds for relief, and did not identify “race,” the IJ did not expressly reference “membership in a particular social group.” The BIA affirmed the decision of the IJ without opinion, and the Thomases petitioned for review. A divided three-judge panel held that the Thomases suffered past persecution as a result of their family membership, granted the petition, and remanded for further consideration of, among other things, whether the government was unable or unwilling to control the violence against the Thomases. II. STANDARD OF REVIEW We review the BIA’s “factual determinations, including its finding of whether an applicant has demonstrated a ‘well-founded fear of persecution,’ ... for substantial evidence.” Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). We also review the BIA’s decision to withhold deportation for substantial evidence. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995). “The substantial evidence standard of review is highly deferential to the Board.” Pedro-Mateo, 224 F.3d at 1150 (quotations and citations omitted). “We review the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act de novo.” Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003) (citations omitted). However, “[t]he BIA’s interpretation of immigration laws is entitled to deference.” Id. at 862. Because the BIA summarily affirmed the IJ’s decision," }, { "docid": "22745732", "title": "", "text": "would be subjected to torture on return to Nepal. Shrestha timely petitioned for review. He has conceded on appeal that his asylum claim was time barred. Therefore, we lack jurisdiction to review Shrestha’s petition as to his asylum claim and we dismiss that part of Shrestha’s petition for review. See Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007). We next address Shrestha’s claims for withholding of removal and for CAT relief, over which we do have jurisdiction. II When the BIA conducts its own review of the evidence and law rather than adopting the IJ’s decision, our review “is limited to the BIA’s decision, except to the extent that the IJ’s opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000)). But when, as here, the BIA’s “phrasing seems in part to suggest that it did conduct an independent review of the record,” but the BIA’s analysis on the relevant issues is confined to a “simple statement of a conclusion,” we “also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Ill We review for substantial evidence the BIA’s determination that Shrestha is not eligible for withholding of removal. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). The BIA affirmed the IJ’s denial of Shrestha’s withholding of removal claim on the basis of the IJ’s adverse credibility determination, and we review adverse credibility determinations under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). To qualify for withholding of removal, a petitioner must establish a “clear probability” that his “life or freedom would be threatened” if he returned to his homeland on account of “race, religion, nationality, membership in a particular social group, or political opinion.” Ahmed, 504 F.3d at 1199 (citations omitted). Eligibility for withholding of removal can be established by demonstrating past persecution, see id., or by “demonstratfing] ... a subjective fear of persecution in the future ... that ... is objectively reasonable,”" }, { "docid": "23211360", "title": "", "text": "PER CURIAM: Petitioner Seyhhmat Ozdemir’s applications for asylum and withholding of deportation were denied by the Board of Immigration Appeals (BIA). Ozdemir petitions us to review the BIA’s decision. We dismiss his petition. FACTS Ozdemir, a twenty-six year old ethnic Kurd, is a citizen of Turkey. Turkish police arrested him on March 16, 1992, after he participated in a Kurdish anti-government demonstration. The police detained him for three days, during which time they beat him on the soles of his feet. The police interrogated him about his participation in terrorist organizations. Ozdemir testified that he is a member of the TKP, an organization that uses peaceful means to combat discrimination against Kurds, and not a member of the PKK, a terrorist organization. The police released Ozdemir, and he participated in no further demonstrations. Nevertheless, the police twice questioned him after terrorist incidents occurred in Istanbul. Ozdemir left Turkey on February 17, 1993, and entered the United States illegally. DISCUSSION We review factual conclusions of the BIA for substantial evidence. Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992). We wall affirm the BIA’s decision unless the evidence compels a contrary conclusion. Id. The BIA concluded that Ozdemir had not suffered past persecution on account of political opinion. The BIA based its conclusion on two grounds: (1) it found that Ozdemir’s testimony was not credible; and (2) even if he was credible, Ozdemir had not suffered past persecution on account of political opinion. The BIA reviews the record de novo and may make its own credibility determinations. Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986). Generally, we review only the decision of the BIA. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991). In this case, however, the immigration judge (IJ) found Ozdemir to be a credible witness. If the credibility determinations of the IJ and the BIA conflict, we may consider both. McMullen v. INS, 658 F.2d 1312, 1318 (9th Cir.1981). We need not decide the credibility issue because, even given Ozdemir’s testimony, we conclude that he did not suffer past persecution on account of political opinion. The" }, { "docid": "22674506", "title": "", "text": "Opinion by Judge GRABER; Dissent by Judge HAWKINS. GRABER, Circuit Judge: In this immigration case, we are called on to decide whether the adverse credibility findings by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) are supported by substantial evidence in the record. We hold that they are and, accordingly, deny the petition. PROCEDURES BELOW Petitioner entered the United States without inspection on May 1, 1995. The United States Immigration and Naturalization Service (INS) later charged Petitioner with being deportable under former section 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(1)(B) (1994) (renumbered § 1227(a)(1)(B)). He conceded deportability but applied for asylum, withholding of deportation, and voluntary departure. After a hearing, the IJ approved Petitioner’s application for voluntary departure, a decision from which no appeal has been taken. However, she denied Petitioner’s application for asylum and for withholding of deportation on the ground that Petitioner had not presented credible evidence in support of his claims. The BIA affirmed the IJ’s order. Petitioner timely sought review of the BIA’s final order, arguing that its adverse credibility finding is not supported by substantial evidence. BURDEN OF PROOF Under section 208(a) of the INA, 8 U.S.C. § 1158(a), the Attorney General has discretion to grant asylum to aliens who qualify as “refugees” under the INA. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 88 (1992). A “refugee” is a person who is unwilling to return to the home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). An alien bears the burden of establishing eligibility for asylum. See Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997). An alien must show by credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution. See Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). The Attorney General must grant withholding of deportation when an alien demonstrates a “clear probability” that, if the alien returns to the home country," }, { "docid": "22660431", "title": "", "text": "withholding of removal, and relief under the United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. Dia alleged that he had been, and would be, persecuted in Guinea due to his actual and imputed political opinions. The Immigration Judge (IJ) rejected Dia’s allegations, finding that she was “not convinced that [Dia] has suffered past persecution” or that Dia would be persecuted and/or killed if he returned to Guinea. The IJ based her conclusion solely on her determination that Dia was not credible. Dia appealed to the Board of Immigration Appeals (BIA), which summarily affirmed the IJ’s decision under its streamlining regulations. This petition for review followed. Our jurisdiction arises under 8 U.S.C. § 1252. Two issues are before the court for consideration en banc: First, we will review whether the streamlining regulations promulgated by the Attorney General are either inconsistent with the INA, or violative of Dia’s due process rights under the Fifth Amendment. See U.S. Const, amend. V. Second, we will review the adverse credibility determination made by the Immigration Judge and summarily affirmed by the BIA. As to the first issue, we determine that the streamlining regulations are valid. As to the second issue, however, we conclude that the IJ’s analysis of Dia’s credibility was based on reasoning that was at best unexplained and at worst speculative. Accordingly, it was not supported by substantial evidence. We will grant the petition for review, vacate the order, and remand to the BIA to give the IJ the opportunity to explain or bolster her analysis. I. THE STREAMLINING REGULATIONS In upholding the IJ’s determination denying Dia relief from removal, the BIA did not issue an opinion, but, instead, issued an “affirmance without opinion” (AWO) under its streamlining regulations. See 8 C.F.R. § 3.1(a)(7) (2002). The streamlining regulations have recently been the subject of many unsuccessful attacks. See, e.g., Khattak v. Ashcroft, 332 F.3d 250, 253 (4th Cir.2003) (rejecting the argument that the regulations are “impermissibly retroactive”); Albathani v. INS, 318 F.3d 365, 377 (1st Cir.2003) (rejecting a due process challenge); Capital Area Immigrants’ Rights Coalition v." }, { "docid": "23273481", "title": "", "text": "credible evidence of persecution and that the INS had failed to overcome the presumption that he would again face persecution if he returned to Iraq. In his brief before the BIA, Hasan argued that he had proved by clear and convincing evidence that he is a refugee within the meaning of the applicable law, and that the IJ had misapplied the law in denying his application for asylum. Neither his petition for review nor his brief before the BIA challenged the IJ’s explicit finding that Hasan was not credible. In fact, the brief makes the wholly false statement that “[i]n the present case the Immigration Judge held that Respondent’s testimony was credible.” Neither his petition nor his brief challenged the IJ’s holdings that Hasan was not entitled to withholding of deportation and protection under the Convention Against Torture. In an order dated January 31, 2003, the BIA affirmed, without opinion, the IJ’s decision, making the IJ’s order of removal the final agency determination. See 8 C.F.R. § 1003.1(e)(4)(h). Hasan now appeals to this court contending that the IJ erred (1) in determining that his testimony was not credible, and (2) in holding that he failed to satisfy his burden of proof for political asylum, withholding of removal, and withholding under the Convention Against Torture. Analysis When the BIA summarily adopts the decision of the IJ without issuing its own opinion, we review the decision of the IJ as the final administrative order. Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003). However, in an appeal from an order of removal, we have jurisdiction to review only those claims as to which the alien has exhausted his administrative remedies, that is, those claims “properly presented to the BIA and considered on their merits.” Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir.2004) (noting that “[i]n Perkovic [v. INS, 33 F.3d 615, 619 (6th Cir.1994) ], this court recognized that if an alien presents both exhausted and unexhausted claims, only those claims that are properly exhausted may be considered”)- In Roma-ni, we held that even if an issue is raised by the" }, { "docid": "22965755", "title": "", "text": "the IJ and dismissed the appeal on the grounds that Meza-Manay had not established past persecution or a well-founded fear of future persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion. Meza-Manay now appeals the BIA’s final decision denying her political asylum. She does not appeal the denial of withholding of deportation. II A. Standard of Review We review the BIA’s interpretations of law regarding the INA under the de novo standard. See Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988). We review the BIA’s factual findings under the deferential “substantial evidence” standard and will uphold them unless the evidence compels a contrary conclusion. See Prasad v. INS, 101 F.3d 614, 616 (9th Cir.1996); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). The parties dispute whether Meza-Ma-nay’s eligibility for political asylum presents an issue of law or fact. Meza-Manay argues that, because there is no dispute as to the credibility of her testimony, the sole issue on appeal presents a question of law-whether she is eligible for asylum under the INA. See Maldonado-Cruz v. Dept. of Immigration & Naturalization, 883 F.2d 788, 791 (9th Cir. 1989). On this basis, Meza-Manay contends that we should review the BIA’s denial of asylum under the de novo standard. On the other hand, the INS argues that the BIA’s decision to deny Meza-Manay’s petition for asylum should be reviewed under the substantial evidence standard. We need not resolve this dispute because we find that, even if we review under the deferential “substantial evidence” standard, the BIA’s decision determining that Meza-Manay is not eligible for asylum should be reversed. Because the BIA’s decision denying Meza-Ma-nay asylum is not supported by substantial evidence, we grant Meza-Manay’s petition for review, reverse the BIA’s decision denying Meza-Manay asylum, and remand this case to the BIA B. Petitioner’s Credibility We have held that “[ajbsent an explicit finding that a specific statement by the petitioner is not credible, we are required to accept her testimony as true.” Hartooni v. INS, 21 F.3d 336, 342" }, { "docid": "22709630", "title": "", "text": "TASHIMA, Circuit Judge: Gourgen Movsisian, a native and citizen of Armenia, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) summarily affirming the immigration judge’s (“IJ”) denial of asylum and withholding of deportation. Movsisian also seeks review of the BIA’s summary denial of his motion to reopen and remand asylum proceedings. Because the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) apply, see Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction under 8 U.S.C. § 1105a, as amended by IIRIRA § 309(c)(4). We deny the petition for review as to Movsi-sian’s claims for asylum and withholding of deportation. We grant the petition for review as to the BIA’s summary denial of Movsisian’s motion to reopen. I. BACKGROUND Movsisian, a Pentecostal Christian from Armenia, entered the United States in 1993, when he was 16 years old. Movsi-sian presented testimony, which the IJ deemed credible, that he left Armenia with his mother to avoid compulsory military service. Movsisian stated that the war was very dangerous, and that he feared being killed given the lack of “law and order” in Armenia. Movsisian explained that one of his neighbors was conscripted and beaten to death by drunken officers. Movsisian also testified that the Armenian authorities do not allow Pentecostal Christians to practice their religion freely. Movsisian and his mother had to worship in the homes of other church members, and one of his pastors was arrested in 1992 or 1993. However, Movsi-sian did not know what would happen if he returned to Armenia and practiced his faith. The IJ denied asylum and withholding of deportation, holding that Movsisian’s fear of being drafted did not provide a basis for relief. The IJ also found that the evidence did not support Movsisian’s claim that he was a genuine religious conscientious objector to military service. Finally, the IJ determined that Movsisian’s future fear of persecution on account of his Pentecostal religion was speculative. Movsisian appealed the IJ’s decision to the BIA. While his appeal was pending, Movsisian filed a motion to reopen and" }, { "docid": "16180396", "title": "", "text": "BETTY B. FLETCHER, Circuit Judge: Alexandra Gui petitions this court for review of a decision of the Board of Immigration Appeals (“BIA”). Mr. Gui, who became politically active in his opposition to Communism following Romania’s 1989 revolution, contends he was persecuted in 1990 and 1991 on account of his political beliefs. The Immigration Judge (“IJ”) did not find Mr. Gui credible and thus held that he did not establish past persecution or the well-founded fear of future persecution necessary for a grant of asylum or withholding of deportation. Mr. Gui appealed the IJ’s decision to the BIA and filed a Motion to Remand for reconsideration of claims based on the regulations implementing the United Nations Convention Against Torture. The BIA affirmed the IJ’s denial of asylum and withholding of deportation and denied Mr. Gui’s motion to reopen the proceedings to assert a claim under the Convention Against Torture. We grant the timely petition for review, find eligibility for asylum, deny withholding of deportation, deny relief under the United Nations Convention Against Torture, and remand to the BIA for an exercise of discretion by the Attorney General as to the grant of asylum. JURISDICTION On February 18, 2000, the BIA entered its final order dismissing Mr. Gui’s administrative appeal. Because the Board entered its ruling after October 30, 1996, and because Mr. Gui’s case was pending before April 1, 1997, the transitional judicial review rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. Pub.L. No. 104-208, 110 Stat. 3546 (Sept. 30,1996); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). The panel has jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA. BACKGROUND Mr. Gui’s Story According to his application for asylum and his testimony before the IJ, Mr. Gui comes from an anti-Communist family that opposed the repressive Communist regime that governed Romania from 1947 until a 1989 revolution felled the government of Nicolae Ceausescu. Mr. Gui’s grandfather, a member of the National Peasants Party, which opposed the communist regime, was sentenced to five years in a labor camp because he was a" }, { "docid": "14345014", "title": "", "text": "LUCERO, Circuit Judge. Essa Kabba, a native of Sierra Leone, entered the United States without authorization. He applied for asylum, asserting past persecution and a fear of future persecution based on his political opinion or imputed political opinion. His asylum application was also construed as a request for a restriction on removal and for protection under the Convention Against Torture (“CAT”). Finding that Kabba was a credible witness, the Immigration Judge (“IJ”) determined that Kabba had established a well-founded fear of persecution and granted his asylum application. In an appeal filed by the government, the Bureau of Immigration Appeals (“BIA”) concluded otherwise. In the BIA’s view, Kabba was not a credible witness because he presented fraudulent documents to the IJ, and because it found omissions and inconsistencies in certain statements that Kabba made during the proceedings. On this basis, the BIA determined that Kabba was ineligible for both asylum and restriction on removal. The BIA further concluded that relief under the CAT was unwarranted because country conditions in Sierra Leone had changed such that Kabba should not fear returning. It directed the IJ to enter an order of removal against Kabba. On remand, the IJ ordered Kabba’s removal, and the BIA dismissed Kabba’s subsequent appeal. Kabba then petitioned this court for review, primarily contending that the BIA did not appropriately review the IJ’s credibility determination under the clearly erroneous standard, as required by 8 C.F.R. § 1003.1(d)(3)©. We agree. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we therefore grant the petition for review on Kabba’s requests for asylum and restriction on removal, and remand for further proceedings. We deny, however, the petition for review as to the request for CAT relief. I A Kabba, a native speaker of Mandingo, filed an asylum application with the assistance of an individual who spoke a different dialect and with the help of an interpreter. In the application, he stated that he sought asylum because he feared being killed by Revolutionary United Front (“RUF”) rebels if he returned to Sierra Leone. He recounted that in October 2000, four RUF rebels raped his wife, held" }, { "docid": "23071500", "title": "", "text": "was a victim of past persecution on account of an imputed political opinion. One BIA Member dissented, citing Harpinder Singh v. Ilchert, 63 F.3d 1501 (9th Cir.1995), which held that, where no charges were filed against the petitioner, the torture inflicted upon him as a civilian deemed to be a political opponent during a civil war must be presumed to be on account of his imputed political opinion. Ratnam’s petition for review was timely filed. We have original jurisdiction pursuant to 8 U.S.C. § 1105a(a) to review a final order of deportation. II. Ratnam argues that persecution on account of an imputed political opinion is a proper basis for asylum or withholding of deportation, that a possible mixed motive on the part of the government does not impair his claim, and that nothing in the record rebutted the presumption of persecution on account of an imputed political opinion arising from the lack of any actual, legitimate criminal prosecution against him. We agree. As a preliminary matter, we hold that the BIA did not err in determining that the IJ did not disbelieve the material facts testified to by Ratnam regarding his persecution claim and that he should be considered a credible witness. See Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996) (explaining that we review a credibility determination by the BIA for substantial evidence and will uphold the determination unless the evidence presented compels a reasonable factfinder to reach a contrary result). An otherwise excludable alien claiming past persecution or fear of future persecution has two main avenues of relief: asylum and withholding of deportation. Pursuant to 8 U.S.C. § 1158(b), the Attorney General may in her discretion grant asylum to an alien present in the United States who is a “refugee,” defined as an alien who is unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Refugee status may derive from persecution on account of a political" }, { "docid": "22722999", "title": "", "text": "denied Mr. Singh’s asylum application and ordered him removed to India. The IJ found that Mr. Singh’s testimony was implausible and not credible. Alternatively, the IJ found that even if Mr. Singh’s testimony were accepted as truthful, he had not demonstrated that he had suffered past persecution because of imputed political opinion. The BIA affirmed in a per curiam decision dated February 25, 2003. The BIA’s opinion included á short footnote denying Mr. Singh’s claim under the Convention Against Torture because he had “not proffered prima facie evidence that it was more likely than not that he would be tortured if he returned to India.” Mr. Singh timely petitioned for review on March 24, 2003. We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). II Mr. Singh contends that his petition for review should be granted because substantial evidence does not support the IJ’s finding that his testimony was not credible. We review adverse credibility determinations for substantial evidence and reverse only if the evidence compels a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Chen v. Ashcroft, 362 F.3d 611, 616 (9th Cir.2004). Although this standard is deferential, the IJ or BIA must identify “specific, cogent reasons” for an adverse credibility finding, and the reasons must be substantial and legitimately connected to the finding. Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.2004); Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996) (quoting Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996), superceded by statute on other grounds, 8 U.S.C. § 1252(g) (1996), Pub.L. No. 104-208, 110 Stat. 3009). This means that the reason identified must “strike at the heart of the claim” for asylum. Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). “Minor inconsistencies ... that do not relate to the basis of an applicant’s alleged fear of persecution, [or] go to the heart of the asylum claim” do not generally support an adverse credibility finding. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir.2003). An IJ must also afford petitioners a chance to" }, { "docid": "23071499", "title": "", "text": "on the grounds that he had “not shown that a reasonable person in his position would have a well-founded fear of persecution from Government authorities or any other group.” The IJ found Ratnam to be “not a totally credible witness,” specifically with regard to his claims that he did not participate knowingly or voluntarily in the Tiger gun-running, and that he had no knowledge of the location of the LTTE camps. The IJ concluded that Ratnam had not shown persecution by the government on account of any political opinion. A divided panel of the BIA affirmed the decision of the IJ. The majority noted the IJ’s concerns regarding Ratnam’s credibility on certain subjects, but determined that “[t]here is no indication that the Immigration Judge disbelieved the material facts relating to his persecution claim by the Sri Lankan authorities which are relevant to our legal determination now.” Accordingly, the Board deemed Ratnam “a credible witness” with respect to the matters material to his appeal. Nevertheless, the majority held that Ratnam had failed to establish that he was a victim of past persecution on account of an imputed political opinion. One BIA Member dissented, citing Harpinder Singh v. Ilchert, 63 F.3d 1501 (9th Cir.1995), which held that, where no charges were filed against the petitioner, the torture inflicted upon him as a civilian deemed to be a political opponent during a civil war must be presumed to be on account of his imputed political opinion. Ratnam’s petition for review was timely filed. We have original jurisdiction pursuant to 8 U.S.C. § 1105a(a) to review a final order of deportation. II. Ratnam argues that persecution on account of an imputed political opinion is a proper basis for asylum or withholding of deportation, that a possible mixed motive on the part of the government does not impair his claim, and that nothing in the record rebutted the presumption of persecution on account of an imputed political opinion arising from the lack of any actual, legitimate criminal prosecution against him. We agree. As a preliminary matter, we hold that the BIA did not err in" }, { "docid": "22699120", "title": "", "text": "and false identification in the United States, which he used to procure a U.S. passport. On November 19, 1992, the Immigration and Naturalization Service issued an Order to Show Cause, charging Molina with entering the United States without inspection in violation of INA § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (recodified at INA § 237, 8 U.S.C. § 1227). In 1997, the IJ denied Molina’s application for asylum and withholding of deportation, and ordered him deported to El Salvador. The IJ found that Molina was not credible, and that, even if he were, he failed to show that he was persecuted “on account of’ political opinion, or any other ground protected under the INA. Molina appealed to the BIA, which dismissed his appeal in a 2-1 decision. The BIA did not find it necessary to make a credibility determination, because it found that even if Molina’s testimony were credible, he failed to meet his burden of proving eligibility for asylum. The BIA ntlted that Molina “provided no evidence that he opposed the ARENA party or that he was in any way involved with a political party or in political activities in El Salvador.” The BIA also asserted that Molina’s “attackers did not mention the ARENA party, or anything else of a political nature during the attack.” The BIA concluded that Molina’s “attackers were [not] in any way motivated by the respondent’s political opinion or an opinion they imputed to him.... Rather, the evidence suggests that he fears harm because of a personal matter between him and Carmen Salazar.” The BIA found that Molina failed to establish either past persecution or a well-founded fear of future persecution “on account of’ any of the statutory grounds, and thus did not qualify for either asylum or withholding of deportation. Molina filed a timely petition for review. Standard of Review We review de novo determinations by the BIA of purely legal questions concerning requirements of the INA. See Vang v. INS, 146 F.3d 1114, 1116 (9th Cir.1998). We examine the BIA’s factual findings under the substantial evidence standard. See Marcu v. INS, 147 F.3d 1078," } ]

[ { "docid": "22690338", "title": "", "text": "however, that makes absolute immunity depend on the particular function performed rather than on whether the state officer’s position had a general relationship to a judicial proceeding. We are asked to review a district court order that deferred a ruling, pending limited discovery, on the defendants’ motion to dismiss on grounds of absolute immunity. Because we conclude that the order is not appealable, we construe this notice of appeal as a petition for a writ of mandamus. See Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 996-98 (9th Cir.2003). We review the merits of the district court’s order on the scope of absolute immunity within the framework of the five factors set out in Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977), which include whether the district court clearly erred. The three-judge panel, in reversing the district court, felt itself bound by our prior circuit law and held that the district court should have dismissed the case on immunity grounds. We now clarify our law concerning the sometimes very difficult question of when a three-judge panel may reexamine normally controlling circuit precedent in the face of an intervening United States Supreme Court decision, or an intervening decision on controlling state law by a state court of last resort. We hold that in circumstances like those presented here, where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled. We hold that Antoine and Kalina effectively overruled Babcock to the extent its reasoning is inconsistent with them and that the district court did not err in ordering limited discovery as to the functions performed by the defendants. We remand to the district court to apply the appropriate analysis to the facts developed after further discovery. II. FACTUAL BACKGROUND The facts are not complex. At this stage of the litigation, we must' accept them as they were set forth' in the" } ]

[ { "docid": "12167782", "title": "", "text": "consistent with the admonition that “claims of a ‘right not to be tried’ [be viewed] with skepticism, if not a jaundiced eye,” Digital Equip. Corp., 511 U.S. at 873, 114 S.Ct. 1992, is based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike. This surely suggests that Oregon does not view such a remedy as necessary to protect the considerations underlying its anti-SLAPP statute. It would simply be anomalous to permit an appeal from an order denying a motion to strike when Oregon was satisfied that the values underlying the remedy could be sufficiently protected by a trial judge’s initial review of the motion, followed by appellate review only after a final judgment in favor of the plaintiff. This distinguishes the present case from Batzel, which held that an order denying a special motion to strike under the California anti-SLAPP statute came within the collateral order doctrine. We found it “instructive” in reaching this conclusion “that California’s anti-SLAPP statute provides that an order denying an anti-SLAPP motion may be appealed immediately.” Batzel, 333 F.3d at 1025; see Cal.Civ.Proc. Code § 425.16(i) (2008). Specifically, we relied upon the following statement by the California Senate Judiciary Committee explaining the reasons for permitting an immediate appeal: Without [the right of immediate appeal], a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.... [W]hen a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal, which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP law is useless and has failed to protect the defendant’s constitutional rights. Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm. Rep. on AB 1675, at 4). Indeed, it was precisely because of the provision authorizing an interlocutory appeal from an order denying a special motion to strike that we concluded that “California law recognizes the protection of the anti-SLAPP statute as" }, { "docid": "17076911", "title": "", "text": "842 (1994). Other courts of appeals have considered whether the collateral order doctrine permits review of interlocutory appeals from denials of motions to dismiss under state anti-SLAPP statutes. In Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003), the Ninth Circuit held that “[b]ecause California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Id. at 1025-26. It then concluded that it had jurisdiction over the appeal because “[a] district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026; see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013-16 (9th Cir.2013); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.2010). But the Ninth Circuit also held that district court orders denying motions to dismiss under Nevada’s and Oregon’s anti-SLAPP statutes were not final orders and were not appealable under the collateral order doctrine. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-02 (9th Cir.2012); Englert v. MacDonell, 551 F.3d 1099, 1105-07 (9th Cir.2009). The Englert court concluded that Oregon’s statute “was not intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial.” Englert, 551 F.3d at 1105. The court’s conclusion was “based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike.” Id. The Ninth Circuit used the same reasoning in Metabolic Research, holding that “Nevada’s anti-SLAPP statute is more like Oregon’s at the time we decided Englert” because “unlike California’s, it does not furnish its citizens with immunity from trial,” 693 F.3d at 801, and “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to" }, { "docid": "12167786", "title": "", "text": "the handful of cases, on which the appellants rely, is that in some cases review of orders denying motions to dismiss because of lack of jurisdiction may be available as a matter of discretion. Indeed, they appear to constitute a mi gen-eris exception, recognized as such by the Supreme Court of Oregon, to the rule that “the prospect of suffering the burden of litigation [is not] a sufficient injury in itself to justify mandamus.” State ex rel. Auto. Emporium, Inc. v. Murchison, 289 Or. 265, 611 P.2d 1169, 1171 & n. 5 (1980). We need not belabor this issue, however, because the availability of such discretionary review in Oregon state court, as opposed to an appeal as a matter of right, provides no support for appellants’ argument that Or.Rev.Stat. § 31.150 was intended to provide a right not to be tried. Indeed, the California Legislature included a provision in its anti-SLAPP statute providing for an interlocutory appeal, because it regarded discretionary review as inadequate to protect the defendant from “the cost of a lawsuit before having his or her right to free speech vindicated.” Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm. Rep. on AB 1675, at 4). We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue. Nor did Batzel suggest otherwise. Batzel did not hold that an order denying a special motion to strike was appealable under the collateral order doctrine merely because California authorized an appeal as a matter of right. Instead, it held that, if a legislature provided an appeal unique to its anti-SLAPP statute, as was the case in California, it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal. This is not the case here. With respect to its anti-SLAPP statute, Oregon has chosen to apply a final judgment rule comparable to that prescribed in 28 U.S.C. §" }, { "docid": "17076910", "title": "", "text": "became effective March 31, 2011, was intended to “allow a defendant to more expeditiously, and more equitably, dispense” with such a suit. Id. It provides that a moving party is entitled to dismissal of the complaint upon a prima facie showing that the claim arises from conduct protected by the statute, unless the responding party demonstrates a likelihood of success on the merits. D.C.Code §§ 16-5501,16-5502. The first question is whether we have appellate jurisdiction. The question presented itself because the district court’s order was not a final judgment ending the action. See 28 U.S.C. § 1291. Defendant O’Connor invokes the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This confers appellate jurisdiction over “district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). Other courts of appeals have considered whether the collateral order doctrine permits review of interlocutory appeals from denials of motions to dismiss under state anti-SLAPP statutes. In Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003), the Ninth Circuit held that “[b]ecause California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Id. at 1025-26. It then concluded that it had jurisdiction over the appeal because “[a] district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026; see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013-16 (9th Cir.2013); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.2010). But the Ninth Circuit also held that district court orders denying motions to dismiss under Nevada’s and Oregon’s anti-SLAPP statutes were not final orders and were" }, { "docid": "20807316", "title": "", "text": "statute.”). The TCPA’s own provisions for interlocutory review are instructive. To be sure, state law does not control the question of whether appellate review is available in federal court. See, e.g., Englert v. MacDonell, 551 F.3d 1099, 1107 (9th Cir.2009) (“We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue.”). However, numerous courts have recognized that the absence or presence of interlocutory statutory review mechanisms at the state level informs the question of whether interlocutory appeal is permissible in federal courts. See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 151 (2d Cir.2013); DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir.2013); Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800-01 (9th Cir.2012); Godin v. Schencks, 629 F.3d 79, 85 (1st Cir.2010); Englert, 551 F.3d at 1105-06; Batzel, 333 F.3d at 1025. This “is relevant not because state law determines the availability of appellate review [in federal court] — it does not — but rather because [it demonstrates whether] ‘lawmakers wanted to protect speakers from the trial itself rather than merely from liability.’ ” Godin, 629 F.3d at 85 (quoting Batzel, 333 F.3d at 1025). Thus, in Batzel, the court found “instructive that California’s anti-SLAPP statute provide[d] that an order denying an anti-SLAPP motion may be appealed immediately.” 333 F.3d at 1025. This, along with that statute’s legislative history, evidenced “that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. The court continued by explaining that, “[i]f the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity:" }, { "docid": "22208741", "title": "", "text": "constitutional rights. Cal. Sen. Judiciary Comm. Rep. on AB 1675, at 4. If the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression. Thus, a defendant’s rights under the anti-SLAPP statute are in the nature of immunity: They protect the defendant from the burdens of trial, not merely from ultimate judgments of liability. Because California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well. See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). A district court’s denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment. See Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Estate of Kennedy v. Bell Helicopter Textron, Inc., 283 F.3d 1107, 1111 (9th Cir.2002) (applying the collateral order doctrine to an appeal from an order denying protection under federal statute of repose, on the ground that “an essential aspect of the ... statute of repose is the right to be free from the burdens of trial”). We therefore have jurisdiction to review the district court’s denial of Cremers’ anti-SLAPP motion. C. Probability of Success To resist a motion to strike pursuant to California’s anti-SLAPP law, Batzel must demonstrate a probability that she will prevail on the merits of her complaint. Cal.Civ.Proc.Code § 425.16. The district court held that Batzel had made such a showing, and absent 47 U.S.C. § 230, we would be inclined to agree. Section 230(c)(1) specifies that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by" }, { "docid": "22208739", "title": "", "text": "defendant is entitled to recover his or her attorney’s fees and costs. See § 425.16(c). If the motion to strike is denied, the anti-SLAPP statute does not apply and the parties proceed with the litigation. The district court’s denial of Cremers’s motion to strike resolved the threshold question whether Batzel’s defamation suit should be dismissed by pre-trial motion. Denial of an anti-SLAPP motion resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiffs claim will succeed. See § 425.16(b)(3) (“If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case.... ”). The purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim. The anti-SLAPP issue therefore exists separately from the merits of the defamation claim itself. Because the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment. We find it instructive that California’s anti-SLAPP statute provides that an order denying an anti-SLAPP motion may be appealed immediately. See § 425.16(j). This provision, along with the legislative history behind § 425.16, demonstrates that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability. As the California Senate Judiciary Committee noted before the law’s enactment, Without [the right of immediate appeal], a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.... [Wlhen a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal, which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins, the anti-SLAPP law is useless and has failed to protect the defendant’s" }, { "docid": "20807320", "title": "", "text": "of Nevada’s law led it to the conclusion that the statute’s “underlying values and purpose [were] satisfied without resort to an immediate appeal because, unlike California’s, it [did] not furnish its citizens with immunity from trial.” Id. Underlying this holding were the court’s observations that “Nevada’s anti-SLAPP statute [did] not expressly provide for an immediate right to appeal,” and that the statute explicitly indicated that its purpose was to provide defendants immunity from “civil liability ” as opposed to immunity from suit or trial. Id. at 802. Accordingly, like the Englert court, the Metabolic Research court concluded that a motion to dismiss under Nevada’s anti-SLAPP statute did not satisfy the third prong of the collateral order doctrine. With respect to the right to an immediate appeal, the TCPA is more similar to the statutes at issue in Batzel and Godin than those considered in Englert and Metabolic Research. Section 27.008 of the TCPA provides that “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem.Code Ann. § 27.008(b). Consistent with Batzel, Go-din, Englert, and Metabolic Research, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value" }, { "docid": "22208737", "title": "", "text": "of facts to sustain a favorable judgment if the evidence submitted by plaintiff is [sic] credited.’ ” Metabolife, 264 F.3d at 840 (quoting Wilcox v. Superior Court, 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446, 454). If the court denies an anti-SLAPP motion to strike, the parties continue with discovery. See § 425.16(g). Once the plaintiffs case has survived the motion, the anti-SLAPP statute no longer applies and the parties proceed to litigate the merits of the action. B. Jurisdiction We are presented with the threshold question whether we have jurisdiction over Cremers’s interlocutory appeal of the district court’s denial of his motion to strike. In California state court, a denial of an anti-SLAPP motion is immediately appealable. See § 425.16(j). The issue before us as a federal court is whether a district court’s denial of an anti-SLAPP motion is an immediately appealable “final decision” under 28 U.S.C. § 1291, so that we have jurisdiction to address Cremers’ appeal. We conclude that we have jurisdiction to review the denial of an anti-SLAPP motion pursuant to the collateral order doctrine. In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). The collateral order doctrine establishes “a narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system nonetheless be treated as final.” Id. at 867, 114 S.Ct. 1992 (internal citations and quotation marks omitted). To fall into this narrow class of immediately appealable orders, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such questions effectively unreviewable on appeal from a final judgment in the underlying action.” Id. In the present case all three factors are met. First, the court’s denial of Cremers’s anti-SLAPP motion is conclusive as to whether the anti-SLAPP statute required dismissal of Batzel’s suit. If an anti-SLAPP motion to strike is granted, the suit is dismissed and the prevailing" }, { "docid": "15423001", "title": "", "text": "For the collateral order doctrine to apply, the interlocutory order must present: (1) a conclusive decision, (2) distinct from the merits of the action, (3) on an important issue, (4) which would effectively be unreviewable on appeal from a final judgment. Awuah v. Coverall N. Am. Inc., 585 F.3d 479, 480 (1st Cir.2009); see also Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006). Three federal circuit decisions hold there is appellate jurisdiction over an order denying an anti-SLAPP motion to dismiss, Hilton v. Hallmark Cards, 580 F.3d 874, 880 (9th Cir.2009), Henry, 566 F.3d at 181, and Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th Cir.2003), while one, also from the Ninth Circuit, holds to the contrary, see Englert v. MacDonell, 551 F.3d 1099 (9th Cir.2009). The issue here is narrower and concerned only with the immediate appealability of an order that a state anti-SLAPP statute does not apply at all to federal court proceedings due to Federal Rules 12 and 56. We defer to another day resolution of the question of whether an order addressed to the merits of a ruling under an anti-SLAPP statute is immediately appealable. We have appellate jurisdiction. First, the order conclusively decides that relief under Maine’s Section 556 is unavailable to the individual defendants. The relevant inquiry for collateral order doctrine purposes is whether the order is conclusive as to “the disputed question,” not the action as a whole. Will, 546 U.S. at 349, 126 S.Ct. 952 (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993)). Second, the issue of whether a defendant can utilize Section 556 in federal court is distinct from the merits of Godin’s action. The legal issue before us is not so intertwined with factual issues as to make it “highly unlikely to affect, or even be consequential to, anyone aside from the parties.” Lee-Barnes v. Puerto Ven Quarry Corp., 513 F.3d 20, 26 (1st Cir. 2008). Third, this appeal raises an important issue of law because the issue raised" }, { "docid": "20807314", "title": "", "text": "a review into the plaintiffs probability of success. Instead, a plaintiff can defeat an anti-SLAPP motion if he merely establishes a prima facie case for each element of the claim. Tex. Civ. Prac. & Rem.Code Ann. § 27.005(c). Thus, the TCPA “has a purpose distinct from that of the underlying suit.” See Henry, 566 F.3d at 175. More directly, “an anti-SLAPP motion ‘resolves a ques tion separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiffs claim will succeed.’ ” Id. (quoting Batzel, 333 F.3d at 1025). As explained in Henry, “‘[t]he purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim,’ not to determine whether the defendant actually committed the relevant tort.” Id. (quoting Batzel, 333 F.3d at 1025). In sum, the denial of a motion to dismiss brought pursuant to the TCPA resolves an important issue separate from the merits of the case, satisfying the collateral order doctrine’s separability requirement. 3. Is the district court’s order effectively unreviewable on appeal from a final judgment ? For the collateral order doctrine to apply, the district court’s order must be effectively unreviewable on appeal. “Perhaps the embodiment of unreviewability, then, is immunity from suit....” Henry, 566 F.3d at 177. In determining whether a right confers immunity, the critical inquiry is whether the statute provides a right not to stand trial in the first place and to otherwise avoid the burdens of litigation. Mitchell v. Forsyth, 472 U.S. 511, 525-26, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). If an essential part of the defendant’s claim is the right to avoid the burden of trial, then this final requirement of the collateral order doctrine is met because obtaining relief after trial is too late. Id. at 525, 105 S.Ct. 2806. In Henry, the court held that the denial of a Louisiana anti-SLAPP motion satisfied the unreviewability requirement. 566 F.3d at 178. (“[The statute] thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the" }, { "docid": "22208738", "title": "", "text": "order doctrine. In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994). The collateral order doctrine establishes “a narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system nonetheless be treated as final.” Id. at 867, 114 S.Ct. 1992 (internal citations and quotation marks omitted). To fall into this narrow class of immediately appealable orders, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such questions effectively unreviewable on appeal from a final judgment in the underlying action.” Id. In the present case all three factors are met. First, the court’s denial of Cremers’s anti-SLAPP motion is conclusive as to whether the anti-SLAPP statute required dismissal of Batzel’s suit. If an anti-SLAPP motion to strike is granted, the suit is dismissed and the prevailing defendant is entitled to recover his or her attorney’s fees and costs. See § 425.16(c). If the motion to strike is denied, the anti-SLAPP statute does not apply and the parties proceed with the litigation. The district court’s denial of Cremers’s motion to strike resolved the threshold question whether Batzel’s defamation suit should be dismissed by pre-trial motion. Denial of an anti-SLAPP motion resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiffs claim will succeed. See § 425.16(b)(3) (“If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case.... ”). The purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim. The anti-SLAPP issue therefore exists separately from the merits of the defamation claim itself. Because the anti-SLAPP motion is designed to" }, { "docid": "15423003", "title": "", "text": "is “weightier than the societal interests advanced by the ordinary operation of final judgment principles.” Id. (quoting Gill v. Gulfstream Park Racing Ass’n Inc., 399 F.3d 391, 399 (1st Cir.2005)) (internal quotation marks omitted). The seminal Supreme Court case of Cohen v. Beneficial Industrial Loan Corporation itself involved an interlocutory appeal from a district court’s determination that a state statute was not applicable to a state-law claim brought in federal court. 337 U.S. at 546, 69 S.Ct. 1221. The Cohen court permitted interlocutory review, and in so doing, carved out the collateral order doctrine. Likewise, the parallel question of whether this state anti-SLAPP statute applies to a state-law claim brought in federal court qualifies as “too important to be denied review.” Id. Finally, the order appealed from would be effectively unreviewable on appeal from a final judgment. It is relevant, but not conclusive, that the Maine Supreme Court’s interpretation of Section 556 has led it to permit interlocutory appeals of orders denying special motions to dismiss in its own courts, because “a failure to grant review of these decisions at this stage would impose additional litigation costs on defendants, the very harm the statute seeks to avoid, and would result in a loss of defendants’ substantial rights.” Schelling v. Lindell, 942 A.2d 1226, 1229-30 (Me.2008); see also Maietta Const., Inc. v. Wainwright, 847 A.2d 1169, 1173 (Me. 2004) (discussing purpose of Section 556). That is relevant not because state law determines the availability of appellate review here — it does not — but rather because “lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Batzel, 333 F.3d at 1025; see also Englert, 551 F.3d at 1107 (whether state anti-SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts). There is a “crucial distinction between a right not to be tried and a right whose remedy requires the dismissal of charges.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 801, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (quoting United States v. Hollywood Motor Car Co., 458 U.S." }, { "docid": "17147538", "title": "", "text": "barred by issue and claim preclusion and by the statutory litigation privilege set forth in California Civil Code section 47(b). Alternatively, Appellants moved the bankruptcy court to strike the claims against them under California’s anti-SLAPP statute. At a hearing, the bankruptcy court announced that it was denying the AP Motion. The court denied the request to strike the adversary proceeding under the anti-SLAPP statute because the adversary proceeding involved federal bankruptcy questions; the court held that the anti-SLAPP statute is inapplicable in bankruptcy cases, even with respect to pendent state law claims. Appellants filed a premature notice of appeal which became effective under Rule 8002(a) when the bankruptcy court entered its order denying the AP Motion on March 8, 2004. We subsequently issued an “Order re Finality” noting that the denial of the portion of the AP Motion requesting that the adversary proceeding be stricken as a SLAPP suit is immediately reviewable under the collateral order doctrine, citing Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003). II. ISSUE Is California’s anti-SLAPP statute applicable in bankruptcy cases involving both federal questions and pendent state law claims? III. STANDARD OF REVIEW A decision to grant or deny an antiSLAPP motion is reviewed de novo. Vess v. Ciba-Geigy Corp., 317 F.3d 1097, 1102 (9th Cir.2003) (“We review the granting of defendants’ motion to strike under the anti-SLAPP statute de novo.”); Lam v. Ngo, 91 Cal.App.4th 832, 111 Cal.Rptr.2d 582, 592 (2001) (“[Djenials of anti-SLAPP suit motions are reviewed de novo by appellate courts.”). IV. DISCUSSION California and a number of other states have enacted anti-SLAPP statutes. California’s anti-SLAPP statute, California Code of Civil Procedure section 425.16, “was enacted in order to provide for the early dismissal of meritless suits aimed at chilling the valid exercise of the constitu tional rights of freedom of speech and petition for the redress of grievances.” Globetrotter Software, Ine. v. Elan Computer Group, Inc., 63 F.Supp.2d 1127, 1128 (N.D.Cal.1999); see also Batzel, 333 F.3d at 1023-24 (“California law provides for pre-trial dismissal of ‘SLAPPs’ ... [which are] lawsuits that ‘masquerade as ordinary lawsuits’ but are brought to deter" }, { "docid": "20807317", "title": "", "text": "appellate review [in federal court] — it does not — but rather because [it demonstrates whether] ‘lawmakers wanted to protect speakers from the trial itself rather than merely from liability.’ ” Godin, 629 F.3d at 85 (quoting Batzel, 333 F.3d at 1025). Thus, in Batzel, the court found “instructive that California’s anti-SLAPP statute provide[d] that an order denying an anti-SLAPP motion may be appealed immediately.” 333 F.3d at 1025. This, along with that statute’s legislative history, evidenced “that California lawmakers wanted to protect speakers from the trial itself rather than merely from liability.” Id. The court continued by explaining that, “[i]f the defendant were required to wait until final judgment to appeal the denial of a meritorious anti-SLAPP motion, a decision by this court reversing the district court’s denial of the motion would not remedy the fact that the defendant had been compelled to defend against a meritless claim brought to chill rights of free expression.” Id. Accordingly, the court concluded that “a defendant’s rights under the anti-SLAPP statute are in the nature of immunity: They protect the defendant from the burdens of trial, not merely from ultimate judgments of liability.” Id.; see also Godin, 629 F.3d at 85 (citing Englert, 551 F.3d at 1107, with approval for the proposition that “whether [a] state anti-SLAPP statute provides for interlocutory appeals is significant to whether interlocutory appeals should be permitted in federal courts”). Equally instructive on the importance of an expedited state appeal process is the analysis undertaken by the Englert and Metabolic Research courts — apparently the only two federal courts to have concluded that orders denying motions to dismiss anti-SLAPP suits are not immediately appealable under the collateral order doctrine. In Englert, the Ninth Circuit held that Oregon’s anti-SLAPP statute “was not intended to provide a right not to be tried.” 551 F.3d at 1105. In reaching this conclusion, the court reasoned that “the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike ... surely suggests that Oregon does not view such a remedy as necessary to protect" }, { "docid": "12167787", "title": "", "text": "having his or her right to free speech vindicated.” Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm. Rep. on AB 1675, at 4). We emphasize that our brief discussion of the availability of mandamus in Oregon is not intended to suggest that Oregon law determines the availability of appellate review here. On the contrary, federal law is controlling on this issue. Nor did Batzel suggest otherwise. Batzel did not hold that an order denying a special motion to strike was appealable under the collateral order doctrine merely because California authorized an appeal as a matter of right. Instead, it held that, if a legislature provided an appeal unique to its anti-SLAPP statute, as was the case in California, it could be inferred that its purpose was to confer immunity from suit — an immunity which can only be vindicated by permitting an interlocutory appeal. This is not the case here. With respect to its anti-SLAPP statute, Oregon has chosen to apply a final judgment rule comparable to that prescribed in 28 U.S.C. § 1291 and has not made any special provision, similar to that enacted in California, for appellate relief from the denial of a special motion to strike. This provides compelling evidence that Or.Rev.Stat. § 31.150 was intended to do nothing more than provide the defendants with a procedural device to obtain prompt review by a nisi prius judge of the likelihood that the plaintiff would be able to come forward with sufficient evidence to get to a jury. Conclusion Because the order from which the appellants seek to appeal is not a final judgment and because it does not come within the “small class” of cases in which an interlocutory appeal may be taken, the consolidated appeals are dismissed. We add these words. In addition to his special motion to strike, defendant Herbert L. MacDonell filed a motion to dismiss the complaint on the grounds that it was barred by the statute of limitations and for lack of personal jurisdiction. The district court denied these motions in the same order that it denied MacDonell’s anti-SLAPP motion." }, { "docid": "20807313", "title": "", "text": "merits in that it merely finds that such merits may exist, without evaluating whether the plaintiffs claim is to succeed.” Id. (citing Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir.2003) (internal quotation marks omitted)). Further, although an anti-SLAPP motion “looks to the plaintiffs probability of success, the court decides it before proceeding to trial and then moves on. Immediate appellate review would thus determine an issue separate from any issues that remain before the district court.” Id. at 176. Separability under the TCPA is even clearer than separability under the Louisiana statute because Louisiana’s statute relies in part on an analysis of the merits of the underlying claim. Louisiana’s statute specifies that if the defendant meets his burden under the statute to show that the plaintiffs suit is in connection with the defendant’s right to free speech, the suit is dismissed unless the plaintiff can establish “a probability of success on the claim.” Henry, 566 F.3d at 170 (citing La.Code Civ. Proc. Ann. art. 971(A)(3)). By contrast, the TCPA does not require so searching a review into the plaintiffs probability of success. Instead, a plaintiff can defeat an anti-SLAPP motion if he merely establishes a prima facie case for each element of the claim. Tex. Civ. Prac. & Rem.Code Ann. § 27.005(c). Thus, the TCPA “has a purpose distinct from that of the underlying suit.” See Henry, 566 F.3d at 175. More directly, “an anti-SLAPP motion ‘resolves a ques tion separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiffs claim will succeed.’ ” Id. (quoting Batzel, 333 F.3d at 1025). As explained in Henry, “‘[t]he purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim,’ not to determine whether the defendant actually committed the relevant tort.” Id. (quoting Batzel, 333 F.3d at 1025). In sum, the denial of a motion to dismiss brought pursuant to the TCPA resolves an important issue separate from the merits of the case, satisfying the collateral order doctrine’s separability requirement. 3. Is the district" }, { "docid": "12167781", "title": "", "text": "“some particular value of a high order ... in support of the interest in avoiding trial,” such as “honoring the separation of powers, preserving the efficiency of government and the initiative of its officials, respecting a State’s dignitary interests, [or] mitigating the government’s advantage over the individual.” Id. at 350, 352-53, 126 S.Ct. 952. While the judgment bar of the FTCA would have saved the defendants the burden and expense of trial, the purpose of the bar was “the avoidance of litigation for its own sake,” rather than the conference of such immunity to advance “a particular value of a high order.” Id. at 353-54, 126 S.Ct. 952. We conclude that the Oregon anti-SLAPP statute fails the Will test at the threshold because it was not intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial. Our conclusion, which is consistent with the admonition that “claims of a ‘right not to be tried’ [be viewed] with skepticism, if not a jaundiced eye,” Digital Equip. Corp., 511 U.S. at 873, 114 S.Ct. 1992, is based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike. This surely suggests that Oregon does not view such a remedy as necessary to protect the considerations underlying its anti-SLAPP statute. It would simply be anomalous to permit an appeal from an order denying a motion to strike when Oregon was satisfied that the values underlying the remedy could be sufficiently protected by a trial judge’s initial review of the motion, followed by appellate review only after a final judgment in favor of the plaintiff. This distinguishes the present case from Batzel, which held that an order denying a special motion to strike under the California anti-SLAPP statute came within the collateral order doctrine. We found it “instructive” in reaching this conclusion “that California’s anti-SLAPP statute provides that an" }, { "docid": "9277866", "title": "", "text": "the only categories of orders on the immediately appealable side of the line are as follows: (1) the denial of a state actor's absolute immunity defense, (2) the denial of a state actor's qualified immunity defense, (3) the denial of a state's Eleventh Amendment immunity defense, and (4) the denial of a criminal defendant's double jeopardy defense. Id. at 350-53, 126 S.Ct. 952. Notably, over the past forty years, the Supreme Court has not sanctioned an appeal pursuant to the collateral order doctrine in a civil case between two private parties, notwithstanding the importance of the interest at stake. See, e.g. , Mohawk Indus. , 558 U.S. at 109, 130 S.Ct. 599 (acknowledging the sanctity of the attorney-client privilege but holding a district court's order adverse to the privilege was not immediately appealable under the collateral order doctrine). As the Court's opinion ultimately concludes, the New Mexico anti-SLAPP statute in no sense constitutes a grant of immunity to Defendants. Thus, the present appeal unquestionably falls outside the line the Supreme Court has marked for categories of collaterally appealable orders. Under the third Cohen inquiry, i.e., whether a claim would be effectively unreviewable absent application of the collateral order doctrine, \"[t]he justification for immediate appeal must ... be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.\" Mohawk Indus. , 558 U.S. at 107, 130 S.Ct. 599. This is because \"[p]ermitting piecemeal, prejudgment appeals ... undermines 'efficient judicial administration' and encroaches upon the prerogatives of district court judges, who play a 'special role' in managing ongoing litigation.\" Id. at 106, 130 S.Ct. 599. While the importance of the First Amendment rights asserted in an alleged SLAPP suit cannot be gainsaid, Supreme Court precedent plainly identifies the pertinent question as whether these rights may be \"adequately vindicable\" by means other than application of the collateral order doctrine. Id. at 107, 130 S.Ct. 599. \"[T]he decisive consideration is whether delaying review until the entry of final judgment would imperil a substantial public interest or some particular value of high order.\" Id. (internal quotation marks omitted). So what is this" }, { "docid": "20807321", "title": "", "text": "a motion to dismiss a legal action under Section 27.003 or from a trial court’s failure to rule on that motion in the time prescribed by Section 27.005.” Tex. Civ. Prac. & Rem.Code Ann. § 27.008(b). Consistent with Batzel, Go-din, Englert, and Metabolic Research, it appears that, by providing this right, the Texas legislature has indicated the nature of the underlying right the TCPA seeks to protect. That right is not simply the right to avoid ultimate liability in a SLAPP case, but rather is the right to avoid trial in the first instance. Thus, “[b]ecause the anti-SLAPP motion is designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression, the district court’s denial of an anti-SLAPP motion would effectively be unreviewable on appeal from a final judgment.” Batzel, 333 F.3d at 1025. We also note that this conclusion is consistent with the Supreme Court’s most recent pronouncements on the collateral order doctrine. In Will, for example, the Court explained that immediate review must advance “some particular value of a high order.” 546 U.S. at 352, 126 S.Ct. 952. “That is, it is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.” Id. at 353, 126 S.Ct. 952 (citation and internal quotation marks omitted). As the Metabolic Research court explained, “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest.” 693 F.3d at 800; see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (“When a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its ‘importance.’”). Likewise, “[i]t would be difficult to find a value of a ‘high[er] order’ than the constitutionally-protected rights to free speech and petition" } ]

[ { "docid": "22703831", "title": "", "text": "supra, because the rule was not discriminatorily applied against union solicitation but was impartially enforced against all solicitors. It seems clear, however, that if a rule against solicitation is invalid as to union solicitation on the employer’s premises during the employee’s own time, a discharge because of violation of that rule discriminates within the meaning of § 8 (3) in that it discourages membership in a labor organization. Republic Aviation Corporation v. National Labor Relations Board is affirmed. National Labor Relations Board v. Le Tourneau Company of Georgia is reversed. No. 226 affirmed. No. 452 reversed. Mr. Justice Roberts dissents in each case. 49 Stat. 449, 452: “Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. “Sec. 8. It shall be an unfair labor practice for an employer— “(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. “(3) By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: . . Midland Steel Products Co. v. Labor Board, 113 F. 2d 800; Labor Board v. Williamson-Dickie Mfg. Co., 130 F. 2d 260, 267; Boeing Airplane Co. v. Labor Board, 140 F. 2d 423; Le Tourneau Co. v. Labor Board, 143 F. 2d 67. See Sixth Annual Report, National Labor Relations Board, pp. 43, 44; Re Harlan Fuel Co., 8 N. L. R. B. 25, 28, 63; Re West Kentucky Coal Co., 10 N. L. R. B., 88, 105-6, 133; Re Weyerhaeuser Timber Co., 31 N. L. R. B. 258, 262, 267, 270; cf. Labor Board v. Waterman S. S. Co., 309 U. S. 206, 224. Labor Board v. Jones & Laughlin, 301 U. S. 1; 49 Stat. 449, 452-455, §§ 7 to 10 inclusive. This is not a statutory administrative hearing to reach a basis for action akin to legislation. See Norwegian" } ]

[ { "docid": "2608414", "title": "", "text": "union activities untrammeled by the fear of possible employer economic coercion or other forms of retaliation. See, e. g., N. L. R. B. v. Community Motor Bus Company, 335 F.2d 120, 122 (4th Cir. 1964); Hendrix Manufacturing Company v. N. L. R. B., 321 F.2d 100, 104-105 (5th Cir. 1963); N. L. R. B. v. United Wire and Supply Corporation, 312 F.2d 11, 13 (1st Cir. 1962); N. L. R. B. v. Des Moines Foods, Inc., 296 F.2d 285, 287 (8th Cir. 1961); N. L. R. B. v. Hoffman-Taff, Inc., 276 F.2d 193, 198 (8th Cir. 1960). SECTION 8(a) (1) — PRE-ELECTION AND POST-ELECTION BENEFITS. The Board found that Respondent’s conferral of economic benefits during the election period in the form of increased holiday time on December 24, 1964 and December 31, 1964 violated Section 8(a) (1) of the Act. There is no doubt that the granting or announcement of economic benefits during a union organizational campaign or during the pendency of a representation election constitutes unlawful interference with the employees’ protected right to organize. National Labor Relations Board v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). We are convinced, however, that the benefits conferred by Respondent here fall far short of the economic benefits condemned in Exchange Parts Co., supra. In the latter case, one of the economic benefits found to be a violation of the Act was an extra “floating holiday,” which would be taken on the employees’ respective birthdays. In questioning the propriety of such benefits, the Court stated: “We think the Court of Appeals was mistaken in concluding that the conferral of employee benefits while a representation election is pending, for the purpose of inducing employees to vote against the union, does not ‘interfere with’ the protected right to organize. “ * * * We have no doubt that it [Section 8(a) (1)] prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to" }, { "docid": "13000373", "title": "", "text": "the Act].” 29 U.S.C. § 158(a)(1). Section 7 provides that employees “shall have the right to self-organization, to form, join, or assist labor organizations . . .”. 29 U.S.C. § 157. The Act does not attempt to restrict the gratuitous conferral of economic benefits by a non-union employer on its employees. See NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964); NLRB v. WKRG-TV, Inc., 5 Cir. 1973, 470 F.2d 1302, 1307-1308. Although ordinary attempts by an employer to stay ahead of unionization are entirely proper, the Act comes into play where the situation has sufficiently crystallized so that some specific orientation exists. It has long been recognized that the inherent danger in “well-timed increases in benefits is the suggestion of a fist inside the velvet glove.” NLRB v. Exchange Parts Co., supra. Thus the conferral of economic benefits upon the employees “which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect” is as much a § 8(a)(1) violation as are “intrusive threats and promises”. NLRB v. Exchange Parts Co., supra. In determining whether a velvet-glove violation exists courts have looked at a number of factors, such as whether the employer has manifested an anti-union animus, the timing of the wage increase, thg employer’s knowledge of union activity, and the relation of the wage increase to past practices. See generally Russell-Newman Manufacturing Co. v. NLRB, 5 Cir. 1969, 407 F.2d 247, 252. The Board contends that there was more than sufficient evidence on which to bottom its finding of a § 8(a)(1) violation. First, the Board correctly observes that we recently have had occasion to enforce a Board order concerning unfair labor practices committed by Delchamps at one of the Mobile-Baldwin stores. Moreover, Del-champs delivered an undisputably legal but nonetheless anti-union speech in August 1976, shortly after it learned of the union activity. Included in the speech was a reminder to the employees of the fact that Delchamps, and not the union, provides the economic benefits. The" }, { "docid": "5477546", "title": "", "text": "of an employer. A union can effectively promise only that it will try to gain certain benefits in bargaining sessions. In contrast, an employer appears as one who can fulfill any pledges he makes which seem to be reasonably within his means. The differing nature of these promises is not likely to be overlooked by the employees in deciding how to cast their ballots. To treat Rice’s letter on the same footing with the union circular would run counter to the broad purpose of § 8(a) (1), which is to establish the right of employees to organize for their mutual aid without employer interference. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). No question of free speech is involved. Section 8(c), by which Congress in 1947 embodied in the Act its understanding of the First Amendment’s requirements, specifically denies protection to speech containing a “promise of benefit,” such as the Board found here. Thus there was sufficient evidence on which the Board could find that Flomatic committed an unfair labor practice within the meaning of § 8(a) (1), and its finding is, therefore, conclusive. N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964) ; N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 180-181 (2d Cir.), cert. denied 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); N. L. R. B. v. Pyne Molding Corp., 226 F.2d 818, 820 (2d Cir. 1955); Indiana Metal Products Corp. v. N. L. R. B., 202 F.2d 613, 620 (7th Cir. 1953); see Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 686, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). The Board’s Remedy Flomatic objects to that part of the Board’s order which requires the company to bargain with the union on request. It contends that the facts of this case warrant only a cease and desist order and a new election. Under § 10(c) the Board is empowered to take such affirmative remedial action as will effectuate" }, { "docid": "196827", "title": "", "text": "review. Having accepted this factual finding, the conclusion that the employer thus violated § 8(a)(1) follows accordingly. The law is clear that § 8(a)(1) prohibits employer conduct “immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). The Board was warranted in finding that the employer promised and granted benefits for the purpose of discouraging union support. The inference that the employer’s purpose was to discourage unionization is supported by the fact that the payment of benefits temporally accompanied the union organizational campaign and by the employer’s other conduct with relation to the campaign. See N.L.R.B. v. South Shore Hospital, 571 F.2d 677, 681 (1st Cir. 1978); N.L.R.B. v. Frantz and Company, 361 F.2d 180, 182 (7th Cir. 1966). The Bargaining Order On January 30, 1976, the union lost the representation election 6 to 4. The Board, however, found that the employer’s numerous unfair labor practices dissipated the union’s majority status as established by the authorization cards, and that these violations were so serious and pervasive that they made a fair rerun election unlikely. The Board, therefore, ordered the employer to bargain and stated that the employer’s bargaining obligation arose as of December 8,1975, the date the union demanded recognition and the date the employer began its course of illegal conduct. Trading Port, Inc., 219 N.L.R.B. 298 (1975). The employer’s refusal to bargain since that date and its institution of unilateral changes in wages, hours, and terms and conditions of employment after that date were found to be violations of § 8(a)(5). Our analysis of the propriety of the bargaining order makes a separate discussion of the § 8(a)(5) charges unnecessary. In Gissel, supra, the Court outlined the types of cases in which the Board could consider the extraordinary remedy of the bargaining order. Such an order could issue in the “ ‘exceptional’ cases marked by ‘outrageous’ and ‘pervasive’ unfair labor practices.” Id.," }, { "docid": "2608418", "title": "", "text": "the employees’ freedom of choice which such post-election benefits may have, particularly where a second election is ordered. For these reasons we feel that such benefits plainly violate Section 8 (a) (1). Cedartown Yarn Mills, Inc., 84 N.L.R.B. 1, 8, enforced per curiam, Cedartown Yarn Mills, Inc. v. N. L. R. B. 180 F.2d 579 (5th Cir. 1950); The Hills Brothers Company, 67 N.L.R.B. 1249, 1255, enforced per curiam, N. L. R. B. v. Hills Bros. Co., 161 F.2d 179 (5th Cir. 1947); Northwest Engineering Company, 148 N.L.R.B. 1136, 1144-45 (1964). See also Amalgamated Clothing Workers v. N. L. R. B., 345 F.2d 264, 266 (2d Cir. 1965) (half a day off without loss of pay to celebrate defeat of union). SECTION 8(a) (5) — REFUSAL TO BARGAIN. The Board found that Respondent violated Section 8(a) (5) of the Act by refusing to recognize and bargain with the Union as the authorized collective bargaining representative of a majority of its employees. The Respondent, despite the uncontradicted evidence that the Union represented an overwhelming majority of its employees, persistently demanded that the representation question be determined through the process of a Board conducted election. Respondent, however, has no such vested right to an election. Where a labor organization has been designated by a majority of the eligible employees as their representative in an appropriate bargaining unit, the employer must recognize and bargain with such an organization, irrespective of whether or not it has been certified by the Board as the result of an election. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 72, 76 S.Ct. 559, 100 L.Ed. 941 (1956); Colson Corporation v. N. L. R. B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962). If, however, there had been substantial evidence to show that Respondent doubted in good faith that the Union represented a majority of its" }, { "docid": "11232059", "title": "", "text": "unlawful intent. See Radio Officers’ Union v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455 (1954); N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed. 308 (1963); N. L. R. B. v. Great Atlantic & Pacific Tea Co., supra. The question here then is whether the nature and circumstances of Mrs. Johnson’s speech were such as to have the natural, and foreseeable effect of interfering with the rights of the employees. This must be determined from the speech itself in the light of the background and circumstances under which it was delivered. E. g., N. L. R. B. v. Kropp Forge Co., 178 F.2d 822, 828 (7 Cir. 1949), cert. den., 340 U.S. 810, 71 S.Ct. 36, 95 L.Ed. 595 (1950). Viewed in this context it is plain that the speech combined promises of benefits and threats of reprisal timed so as to impinge on the employees’ freedom of choice as to whether or not their interests would best be served by unionization. Mrs. Johnson spoke the day after she had learned of the commencement of a campaign for unionization of the plant. She made it clear that she had no use for the union. Dissatisfied employees were pointedly invited to leave. Coupled with this were announcements of imminent improvements in vacation policy and wages. There was a plain “suggestion of a fist inside the velvet glove.” N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). See also Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); N. L. R. B. v. Flomatic Corp., 347 F.2d 74, 77 (2 Cir. 1965); N. L. R. B. v. Howe Scale Co., 311 F.2d 502, 504 (7 Cir. 1963); N. L. R. B. v. Philamon Labs., Inc., 298 F.2d 176, 180-181 (2 Cir.), cert. den., 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); N. L. R. B. v. Pyne Molding Corp., 226 F.2d 818, 820 (2 Cir." }, { "docid": "5477547", "title": "", "text": "that Flomatic committed an unfair labor practice within the meaning of § 8(a) (1), and its finding is, therefore, conclusive. N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964) ; N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 180-181 (2d Cir.), cert. denied 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); N. L. R. B. v. Pyne Molding Corp., 226 F.2d 818, 820 (2d Cir. 1955); Indiana Metal Products Corp. v. N. L. R. B., 202 F.2d 613, 620 (7th Cir. 1953); see Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 686, 64 S.Ct. 830, 88 L.Ed. 1007 (1944). The Board’s Remedy Flomatic objects to that part of the Board’s order which requires the company to bargain with the union on request. It contends that the facts of this case warrant only a cease and desist order and a new election. Under § 10(c) the Board is empowered to take such affirmative remedial action as will effectuate the policies of the Act. It is well settled that the Board has a great deal of discretion in devising appropriate remedies for unfair labor practices. Franks Bros. Co. v. N. L. R. B., 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020 (1944); Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); N. L. R. B. v. Stow Manufacturing Co., 217 F.2d 900, 905 (2d Cir. 1954), cert. denied 348 U.S. 964, 75 S.Ct. 524, 99 L.Ed. 751 (1955). However, the Board’s action is not insulated from judicial review where it has applied “a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act.” N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 290, 97 L.Ed. 377 (1953); see also, Local 60, United Bhd. of Carpenters, etc. v. N. L. R. B.," }, { "docid": "12150859", "title": "", "text": "limit. He used the test of restraint and coercion as those terms are used in § 8(a) (1). We do not consider whether the decision could be sustained on this test for, as we have pointed out, § 8(c) is the limit. Neither the Examiner nor the Board reached the question of whether there was a threat of reprisal or force by Respondent in the use of the film. The Examiner began by posing this as the issue but never answered his own question. He switched off to the broader language of § 8 (a) (1). The Board, as noted in footnote 3, swpra, made no independent finding on this question * * While the trial examiner in the present case did generally cast his findings in terms of section 8(c), we think that his findings were likewise based upon his conclusion that the statements could be considered coercive within the meaning of section 8(a) (1). But the broad language of section 8(a) (1) is not the test of whether election propaganda violates the Act. It must first be found that the challenged material contains a threat of force or reprisal or promise of benefit by the employer. We can find in the material supporting the first two themes no threat that the employer would use force or indulge in reprisal. The literature and the speech, insofar as violence and strikes are concerned, are but predictions of what the union might or would do. As such, we think that they fall squarely within the protection of section 8(c), even though they might well produce, in the minds of employees, fears of violence. The same observation applies to predictions of possible monetary loss or job loss arising from strikes that are contained in the propaganda. See Russell-Newman Mfg. Co. v. N. L. R. B., 5 Cir., 1966, 370 F.2d 980; Texas Industries, Inc. v. N. L. R. B., 5 Cir., 1964, 336 F.2d 128. There is no suggestion that the employer will reduce benefits or cut jobs if the employees vote for the union. The prediction is that the union may" }, { "docid": "22338457", "title": "", "text": "insure that employees shall have a free choice as. to the question of their representation in negotiating with an employer. This, of course, does not preclude the employer from stating his views as to whether or not the employees should join the union. But “Employers still may not, under the guise of merely exercising their right of free speech, pursue a course of conduct designed to- restrain and coerce their employees in the exercise of rights guaranteed them by the Act”. N. L. R. B. v. Gate City Cotton Mills, 5 Cir., 167 F.2d 647, 649. The Act does not preclude an employer from introducing benefits during an organizational period. But when the employer uses proposed benefits as an inducement not to join the union, his activity bears no shield of privilege. For “interference is no less interference because it is accomplished through allurements rather than coercion * * *.\" Western Cartridge Co. v. N. L. R. B., 7 Cir., 134 F.2d 240, 244; N. L. R. B. v. Bailey Co., 6 Cir., 180 F.2d 278; N. L. R. B. v. LaSalle Steel Co., 7 Cir., 178 F.2d 829, 835; N. L. R. B. v. Crown Can Co., 8 Cir., 138 F.2d 263, 267. Such action “minimizes the influence of organized bargaining. It interferes with the right of self-organization by emphasizing to-the employees that there is no necessity for a collective bargaining agent.” May Dept. Stores Co. v. N. L. R. B., 326 U.S. 376, 385, 66 S.Ct. 203, 209, 90 L.Ed. 145. The Board has concluded, that the promise of benefits here in question interfered with the employees’ freedom to organize, contrary to section 8(a) (1). The employees were offered rest periods, and, if they desired, shift rotation. These promises were made in the context of speeches which verbally assured the employees complete freedom of choice. But at the same time the speeches made clear that the employer did not think unionization would be to the benefit of the employees or the company. The speeches were made at a crucial time, that is, immediately prior to the election. Whether" }, { "docid": "7591569", "title": "", "text": "of benefits such as wage increases is held to be a violation of 8(a) (1) of the Act whether or not the employees or the employer initiate the suggestion. Medo Photo Supply Corp. v. NLRB, supra. Section 8(a) (1) reaches “not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect.” NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). The conduct of Texaco was clearly calculated to induce the employees to abandon their interest in the union. This is so notwithstanding the fact that the company was legally obligated to take the remedial steps it did take. The Board was warranted in finding that antiunion sentiment and not a sudden desire to make good its obligations motivated the payment of the overdue debts and the repair of the tractor-trailer. It is obvious that Martin’s post-speech conduct went far towards remedying the very grievances which gave rise to the union interest and destroyed for the moment at least the employees’ need for greater strength. In the unusual circumstances of having their grievances remedied the employees can not be said to have been free to fairly appraise the value of unionization. The company argues that the bargaining order is inappropriate since the seven employees voluntarily withdrew their request for representation. This argument overlooks the Board’s finding that the employees’ disassoeiation from the union was attributable to the unfair labor practices committed by the company. We reject the company’s contention that since the trial examiner, with the Board’s concurrence, found that there was no improper influence with respect to the letter, it must be conclusive of a withdrawal. Having remedied the causes for interest in a union the company did not have to employ improper means to get the employees to abandon it. The activities already discussed clearly provide the kind of objective evidence required to look beyond the face of the document signed by the" }, { "docid": "23347055", "title": "", "text": "following finding of the Board: “In the instant case the cards, on their face, specifically authorized the Union to represent the employees. And, except for one card, not in issue herein, the record shows that the representations made by the Union’s solicitors in order to obtain employee signatures, clearly reflect and corroborate the purpose of the cards as printed thereon. The Trial Examiner’s finding that no misrepresentations were made in securing employee signatures is amply supported by the record. Hence, without considering their subjective intent in signing the cards, we find, in agreement with the Trial Examiner, that the employees authorized the Union to represent them.” 143 N.L.R.B. at 851. As said in N. L. R. B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (C.A. 2), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498: \"The act imposes a duty to bargain in good faith upon request whenever a labor organization has been designated by a majority of employees in an appropriate bargaining unit.- The employer must recognize and bargain with such an organization whether or not it has been certified by the Labor Board. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U. S. 62, 76 S.Ct. 559, 100 L.Ed. 941 (1956); N. L. R. B. v. Sunrise Lumber & Trim Corp., 241 F.2d 620 (2 Cir., 1957), cert. denied 355 U.S. 818, 78 S.Ct. 22, 2 L.Ed.2d 34 (1957). To be sure, an employer laboring under a good faith doubt as to a union’s majority status need not extend recognition. Nevertheless, in the absence of such a doubt, the employer has no vested right to an election. N. L. R. B. v. Trimfit of California, 211 F.2d 206 (9 Cir., 1954).” Of the fourteen employees whose cards were presented by the union to respondents, twelve appeared at the hearing to identify their signatures and explain the circumstances under which they signed. The union solicitors who obtained the signatures of the other two employees testified as to the details of how these cards were signed. As said in Joy Silk Mills v. N." }, { "docid": "20643002", "title": "", "text": "Pre-election Benefit Grant to All Except Union-Eligible Employees An employer must refrain from interfering with or discouraging the exercise of protected labor rights by either granting or withholding a benefit. Whether interference is accomplished by dangling a carrot or brandishing a stick, the Supreme Court has long counseled that it is interference all the same. See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 32, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); NLRB v. Exchange Parts Co., 375 U.S. 405, 409-10, 84 S.Ct. 457, 11 L.Ed.2d 435 (1964). What the Act requires is that the employer make its benefits decisions “precisely as it would if the union were not on the scene.” Federated Logistics & Operations v. NLRB, 400 F.3d 920, 927 (D.C. Cir. 2005) (quoting Perdue Farms, Inc. Cookin’ Good Division v. NLRB, 144 F.3d 830, 836 (D.C. Cir. 1998)). Section 7 of the NLRA protects a range of employee rights to form, join, and support labor unions and engage in bargaining and other concerted activities to advance their interests in the workplace. 29 U.S.C. § 157. An employer may not use benefit eligibility as a means of discouraging employees from participating in a representation election. See 29 U.S.C. § 158(a)(1). And it may not, without valid reason, treat employees differently in the promise or offer of important employee benefits based on the employees’ participation in protected activities. See 29 U.S.C. § 158(a)(3). When Care One timed the announcement of its discretionary, one-time, system-wide reinstatement of a valued healthcare benefit just three weeks before a scheduled representation election, withheld that benefit from only its union-eligible employees, and offered “the pendency of the representation election” as its sole reason, it violated the Act. The Company thereby discouraged union membership in violation of section 8(a)(1), and discriminated against union-eligible employees in regard to a term of employment, in violation of section 8(a)(3). Substantial evidence supports the Board’s conclusion that the way in which Care One reinstated the health plan unlawfully interfered with its employees’ right to organize in violation of Section 8(a)(1). As we have explained, “an employer may not" }, { "docid": "9573374", "title": "", "text": "often holds that employers’ promises of benefit if the union loses or threats of harm if it wins are coercive. See, e.g., NLRB v. Flomatic Corp., 347 F.2d 74, 77 (2d Cir.1965) (unfair labor practice rather than representation context). The rationale is that, by wielding benefits within its power to grant or withhold, the employer may coerce the employees’ choice. Id. This rationale has less force when a union’s conduct is under scrutiny, because “[a] union can effectively promise only that it will try to gain certain benefits in bargaining sessions. In contrast, an employer appears as one who can fulfill any pledges he makes which seem to be reasonably within his means.” Id. A union’s promise of a particular wage increase would therefore lack credibility; but the union in this case did not even go so far, but merely promised energetic support. Such promises, even when phrased as guarantees, are proper. See Archer Laundry Co., 150 N.L.R.B. 1427, 1435 (1965). See also NLRB v. Savair Manufacturing Co., 414 U.S. 270, 279 n. 6, 94 S.Ct. 495, 500, 38 L.Ed.2d 495 (1973) (pre-election union promises or grants of benefits may be coercive only if not across the board to all employees); id. at 283, 94 S.Ct. at 502 (White, J., dissenting); Wilson Athletic Goods Manufacturing Co. v. NLRB, 164 F.2d 637, 639-40 (7th Cir.1947). This is particularly true in the context of a heated campaign such as this one, in which the company challenged the union to state what it could guarantee the employees. As one commentator has noted, “[t]he union’s promise to improve working conditions, which takes the form of specific goals for wages, fringe benefits, grievance processing and the like, is inherent in every election campaign and is not regarded as unlawful.” R. Gorman, Basic Text on Labor Law 170 (1976). That such promises may influence votes does not make them coercive; by that standard, all useful information would be banned from campaigns. C Finally, the company argues that Board agents acted improperly in refusing to reopen the polls, after the ballots had been tallied, to allow two" }, { "docid": "17080052", "title": "", "text": "of the National Labor Relations Act provides that it shall be an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise” of their right to organize for mutual aid and protection. A violation of this section occurs if an employer grants an increase in wages or other benefits during an election campaign for the purpose of persuading the employees to vote against the union. NLRB v. Exchange Parts Co., 1964, 375 U.S. 405, 84 S.Ct. 457, 11 L.Ed. 2d 435; Russell-Newman Manufacturing Co. v. NLRB, 5 Cir. 1969, 406 F.2d 1280; Crown Tar & Chemical Works v. NLRB, 10 Cir. 1966, 365 F.2d 588. In Exchange Parts, supra, the Supreme Court explained: “The broad purpose of § 8(a) (1) is to establish ‘the right of employees to organize for mutual aid without employer interference.’ Republic Aviation. Corp. v. [National] Labor [Relations] Board, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372, [1377] [157 A.L.R. 1081]. We have no doubt that it prohibits not only intrusive threats and promises but also conduct immediately favorable to employees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect. In Medo Photo Supply Corp. v. [National] Labor [Relations] Board, 321 U.S. 678, 686, 64 S.Ct. 830, 834, 88 L.Ed. 1007 [1012], this Court said: ‘The action of employees with respect to the choice of their bargaining agents may be induced by favors bestowed by the employer as well as by his threats or domination.’ Although in that case there was already a designated bargaining agent and the offer of ‘favors’ was in response to a suggestion of the employees that they would leave the union if favors were bestowed, the principles which dictated the result there are fully applicable here. The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which" }, { "docid": "5477542", "title": "", "text": "call for a response, and that Rice’s April pre-election eon-duct did not violate that provision of the Act. It reversed the Trial Examiner, however, by finding that Rice’s letter of May 1 contained promises of benefits and invitations to employees to bypass the union and to deal directly with Respondent, which interfered with the employees’ exercise of § 7 rights, in violation of § 8(a) (1), and which destroyed the conditions for a fair election in which the union could demonstrate its majority. As an appropriate remedy, the Board entered a bargaining order. The Board’s decision is reported at 147 NLRB No. 143 (1964). Two questions are, therefore, presented: (1) whether there is substantial evidence to support the Board’s finding that the company violated § 8(a) (1) by interfering with, restraining or coercing its employees in the exercise of their right to self-organization, and, if this is so, then (2) whether a bargaining order is an appropriate remedy for the unfair labor practice found. The Unfair Labor Practice Although the trial examiner reached a contrary conclusion, we cannot say on the record as a whole that there was not substantial evidence to support the Board’s decision that Flomatic violated § 8(a) (1). Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). While Rice, in his letter of May 1, 1963, stated that with an N. L. R. B. election in the offing it would not be legal for him to make any guarantees of what improvements he would offer, the letter did contain promises of benefit as well as invitations to the employees to deal directly with the company. Included in the employer’s promises were a wage raise (“I have previously said I would consider pay raises as soon as we were making money * * * [We] did make money in the past quarter of this year, so if my word is any good you can draw your own conclusions.”), seniority (“I will guarantee to respect seniority.”), vacation with pay (“I would hope that we could look for some improvement" }, { "docid": "3949653", "title": "", "text": "S.Ct. 300, 305 n. 4, 84 L.Ed. 347, 353 n. 4 (1940). This court has stated that “unfair labor practices predicated on speech must be scrutinized carefully and unless the speech is coercive — i.e. contains threats or promises — it is privileged.” NLRB v. Marine World USA, 611 F.2d 1274, 1277 (9th Cir.1980). An employer may attempt to influence the outcome of an election by presenting facts and even making predictions based on fact, as long as the employer avoids using its influence to interfere with employee rights of free association. Gissel Packing Co., 395 U.S. at 618, 89 S.Ct. at 1942, 23 L.Ed.2d at 580-81. An employer’s preelection expression will always be closely scrutinized, because an employee’s economic dependence on his employer increases the possibility of coercion or undue influence from otherwise innocuous statements. 395 U.S. at 618, 89 S.Ct. at 1942, 23 L.Ed.2d at 580-81. An employer may not grant benefits in the period preceding a union election in order to influence the outcome of that election. NLRB v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435, 438-39 (1964). The question for the Board is whether the benefits were granted at that time “in the normal course of business ..., or outside the normal course of business in an attempt to influence the outcome of the election.” Pedro’s, Inc. v. NLRB, 652 F.2d 1005, 1008 (D.C. Cir.1981). See Free-Flow Packaging Corp. v. NLRB, 566 F.2d 1124, 1129 (9th Cir.1978) (test is whether grant or denial of benefits conforms to “status quo”). The Board has recognized that Raley’s did not grant increased benefits in order to influence an impending election. The insurance benefits were increased automatically as a consequence of an agreement made two years before to match the benefits given to the Nevada employees. The Board therefore found that Raley’s did not violate section 8(a)(1) by granting the increased benefits. The unfair labor practice finding in question was limited to Raley’s communica tive activities. We are thus presented with the bald question whether an employer can violate section 8(a)(1) by announcing" }, { "docid": "15733148", "title": "", "text": "well within the guidelines stated by the Supreme Court in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 617-619, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547 (1969) where the Court said: “But we do note that an employer’s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board. Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements the First Amendment by requiring that the expression of ‘any views, argument, or opinion’ shall not be ‘evidence of an unfair labor practice,’ so long as such expression contains ‘no threat of reprisal or force of promise of benefit’ in violation of § 8(a)(1).” “Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control____” “If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment.”___ “As stated elsewhere, an employer is free only to tell ‘what he reasonably believes will be the likely economic consequences of unionization that are outside his control,’ and not ‘threats of economic reprisal to be taken solely on his own volition.’ N. L. R. B. v. River Togs, Inc. 382 F.2d 198, 202 (CA2d Cir. 1967).” The speeches and statements of McCloud and other officials of the Company were closely related to “economic necessities” and were cast" }, { "docid": "5477545", "title": "", "text": "size it hardly seems necessary to pay dues to a union for the privilege of talking to me * * * An exchange of views through a third party is never satisfactory and is often distorted and misunderstood. A direct communication between two people is almost always the best way to solve a problem. If you don’t want to come to me I shall be glad to come to you at your convenience to discuss any matter which you think we should look into.” The letter was more than a statement of pre-existing policy or reply to the union’s circular. It went beyond a statement of current labor policy, because it carried thinly-veiled promises of benefit that even the most naive employee could easily read as contingent upon the defeat of the union, and it was only partially justified as a response to the union’s campaign promises and the charge that, without a union, wages would be lowered. Such an argument must take into consideration the fundamental difference between a union’s election promises and those of an employer. A union can effectively promise only that it will try to gain certain benefits in bargaining sessions. In contrast, an employer appears as one who can fulfill any pledges he makes which seem to be reasonably within his means. The differing nature of these promises is not likely to be overlooked by the employees in deciding how to cast their ballots. To treat Rice’s letter on the same footing with the union circular would run counter to the broad purpose of § 8(a) (1), which is to establish the right of employees to organize for their mutual aid without employer interference. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). No question of free speech is involved. Section 8(c), by which Congress in 1947 embodied in the Act its understanding of the First Amendment’s requirements, specifically denies protection to speech containing a “promise of benefit,” such as the Board found here. Thus there was sufficient evidence on which the Board could find" }, { "docid": "9573373", "title": "", "text": "violence for crossing a hypothetical future picket line has an incentive to vote against the union in order to prevent the possibility of a strike; and in any case because the threat was not conditioned on the employee’s vote in the election, the inference that it might have affected the voting is tenuous. For these reasons, the Board’s finding that no coercive atmosphere was created is sound. B The company further alleges that the union’s statement that, if it won the election, it could “guarantee ... that [the employees’] Local will get as much, if not more, support as American Motors of Richmond did (they ended up with a first year pay increase of around 10%)” was an improper promise of benefit that tainted the election. To the extent that this argument rests on the ground that the wage comparison was erroneous, I have already answered it above in discussing misrepresentations. But to the extent that the argument rests on the ground that promises of benefit are improper, it borders on the frivolous. The Board often holds that employers’ promises of benefit if the union loses or threats of harm if it wins are coercive. See, e.g., NLRB v. Flomatic Corp., 347 F.2d 74, 77 (2d Cir.1965) (unfair labor practice rather than representation context). The rationale is that, by wielding benefits within its power to grant or withhold, the employer may coerce the employees’ choice. Id. This rationale has less force when a union’s conduct is under scrutiny, because “[a] union can effectively promise only that it will try to gain certain benefits in bargaining sessions. In contrast, an employer appears as one who can fulfill any pledges he makes which seem to be reasonably within his means.” Id. A union’s promise of a particular wage increase would therefore lack credibility; but the union in this case did not even go so far, but merely promised energetic support. Such promises, even when phrased as guarantees, are proper. See Archer Laundry Co., 150 N.L.R.B. 1427, 1435 (1965). See also NLRB v. Savair Manufacturing Co., 414 U.S. 270, 279 n. 6, 94" }, { "docid": "11232060", "title": "", "text": "Mrs. Johnson spoke the day after she had learned of the commencement of a campaign for unionization of the plant. She made it clear that she had no use for the union. Dissatisfied employees were pointedly invited to leave. Coupled with this were announcements of imminent improvements in vacation policy and wages. There was a plain “suggestion of a fist inside the velvet glove.” N. L. R. B. v. Exchange Parts Co., 375 U.S. 405, 409, 84 S.Ct. 457, 460, 11 L.Ed.2d 435 (1964). See also Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 684, 64 S.Ct. 830, 88 L.Ed. 1007 (1944); N. L. R. B. v. Flomatic Corp., 347 F.2d 74, 77 (2 Cir. 1965); N. L. R. B. v. Howe Scale Co., 311 F.2d 502, 504 (7 Cir. 1963); N. L. R. B. v. Philamon Labs., Inc., 298 F.2d 176, 180-181 (2 Cir.), cert. den., 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); N. L. R. B. v. Pyne Molding Corp., 226 F.2d 818, 820 (2 Cir. 1955); Indiana Metal Prods. Corp. v. N. L. R. B., 202 F.2d 613, 620 (7 Cir. 1953); Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv.L. Rev. 38,112-16 (1964). The first sans velvet glove appears unmistakably from the threat to close the plant if it were unionized. The coercive purport and effect of the speech as a whole and the consequent violation of § 8(a) (1) are too clear to require further discussion. (2) The discharge of Mrs. Crescimanno Jean Crescimanno, a sewing machine operator, was a member of the union, as management knew. She was also vice president of the local, though apparently she had taken no part in the organizational campaign. Mrs. Crescimanno was discharged on the Monday following Mrs. Johnson’s speech of June 7. She was told that the reasons were absence and lateness. It is plain that Mrs. Crescimanno’s record of attendance and punctuality left a great deal to be desired. She failed to report for work a total of 20 out of" } ]

[ { "docid": "22608471", "title": "", "text": "made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983”). In addition, punitive damages are not available under § 1983 from a municipality, Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981), but are available in a suit against an official personally, see Smith v. Wade, 461 U. S. 30 (1983). There is no longer a need to bring official-capacity actions against local government officials, for under Monell, supra, local government units can be sued directly for damages and injunctive or declaratory relief. See, e. g., Memphis Police Dept. v. Garner, 471 U. S. 1 (1985) (decided with Tennessee v. Gamer) (damages action against municipality). Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, however, a State cannot be sued directly in its own name regardless of the relief sought. Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). Thus, implementation of state policy or custom may be reached in federal court only because official-capacity actions for prospective relief are not treated as actions against the State. See Ex parte Young, 209 U. S. 123 (1908). In many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. “The course of proceedings” in such eases typically will indicate the nature of the liability sought to be imposed. Brandon v. Holt, 469 U. S. 464, 469 (1985). The city and county were sued directly as entities, but that aspect of the case is not before us. See also n. 3, supra. The Court has held that § 1983 was not intended to abrogate a State’s Eleventh Amendment immunity. Quern v. Jordan, 440 U. S. 332 (1979); Edelman v. Jordan, 415 U. S. 651 (1974). Because this action comes to us as if it arose solely under § 1983, see n. 2, supra, we cannot conclude that federal law authorized an official-capacity action for damages against Commissioner Brandenburgh to be brought in federal court." } ]

[ { "docid": "10265751", "title": "", "text": "directly. Busby, supra, 931 F.2d at 772 [emphasis added]. More recently, in Wallace v. City of Montgomery, 956 F.Supp. 965, 976 (M.D.Ala.1996) (DeMent, J.), this court stated the following in an § 1983 action: It is well established that “suits against an official in his or her official capacity are suits against the entity the individual represents.” Parker v. Williams, 862 F.2d 1471, 1476 n. 4 (11th Cir.1989); see also Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 2036 n. 55, 56 L.Ed.2d 611 (1978) (indicating that “official-capacity suits generally represent only another way of pleading action against an entity of which an officer is an agent”); Welch v. Laney, 57 F.3d 1004, 1007 (11th Cir.1995); Farred v. Hicks, 915 F.2d 1530, 1532 (11th Cir.1990). Wallace, supra, 956 F.Supp. at 976. See also Griswold v. Alabama Department of Industrial Relations, 903 F.Supp. 1492, 1496-1497 (M.D.Ala.1995) (Albritton, J.). No relief under § 1983 is granted against the ASBE or against any of the institutions. The defendants are correct in their assertion that the Eleventh Amendment prohibits a federal court from exercising jurisdiction over a lawsuit against a state, except where the state has consented to be sued or waived its immunity, or where Congress has overridden the state’s immunity. Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (absent waiver of the Eleventh Amendment immunity, neither the state nor any agency acting under its control may be subject to suit in federal court). Since Alabama has not waived its immunity, the plaintiffs’ § 1983 claims against the state of Alabama -i.e., the ASBE- is barred. See also Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58, 57 L.Ed.2d 1114 (1978). “It is undisputed [however] that the Eleventh Amendment does not bar [the plaintiffs’] Title VII suit.” Allen v. Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th Cir.1987). Thus, the immunity defense does not apply to plaintiffs’ Title VII claims. IV. CONCLUSION It is" }, { "docid": "18863527", "title": "", "text": "7 L.Ed.2d 343 (1961). The Supreme Court of Nevada is a part of the Judicial Branch of the State of Nevada and is created by the Nevada Constitution, article 6. It has also been held that the courts of a state are not “persons” subject to suit under Title 42, U.S.C., § 1983 et seq. Coopersmith v. Supreme Court, Colorado, 465 F.2d 993 (10th Cir. 1972); Harris v. Louisiana State Supreme Court, 334 F.Supp. 1289 (E.D.La.1971); Fox v. Juvenile Court, 321 F.Supp. 67 (E.D.Pa.1970). The United States Supreme Court has recently ruled that municipalities are “persons” subject to suit under the Civil Rights Acts. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1979). However, the Supreme Court has specifically reasserted its position that the State and its agencies are not “persons” subject to suit under the Civil Rights Acts. Quern v. Jordan, 440 U.S. 332, 338-40, 99 S.Ct. 1139, 1143-45, 59 L.Ed.2d 358, 365-66 (1979); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114, 1116 (1978). Therefore, plaintiff’s claims under the Civil Rights Acts are dismissed. However, plaintiff has also asserted Title 28, U.S.C., § 1331 as a jurisdictional basis for this suit. Defendants State Bar of Nevada and the Nevada Supreme Court argue that the Eleventh Amendment bars the plaintiff’s claims for damages and injunctive relief. It is clear that under the Eleventh Amendment a state or its agencies cannot be sued without their consent. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114, 1116 (1978); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890); Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir. 1979). Nevada has explicitly refused to waive its immunity to suit under the Eleventh Amendment, NRS 41.031(3). In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it was held that suits against state officials to enjoin violations of constitutional rights were not forbidden by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S." }, { "docid": "1179250", "title": "", "text": "its precise impact on the suit depends on the nature of relief sought. If the action is for damages so that payment of a damages award requires payment from the State Treasury to remedy past wrongs, the Eleventh Amendment bars such an action, in the absence of a waiver by the State or a valid override by Congress. Graham, 105 S.Ct. at 3107; Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358. By contrast, under the landmark case of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the Eleventh Amendment does not bar a citizen from seeking injunctive or declaratory relief against a state official “to conform [his] future conduct to the requirements of federal law.” Quern, 440 U.S. at 332, 99 S.Ct. at 1143; see also Graham, 105 S.Ct. at 3107 n. 18. Moreover, monetary relief that is merely “ancillary” to injunctive relief is also not barred by the Eleventh Amendment. Graham, 105 S.Ct. at 3107 n. 19. A third type of suit is a suit by a citizen directly against an entity of the state, without naming state officials as defendants. In this type of suit, regardless of the relief sought, the Eleventh Amendment bars the suit, unless the state has waived its immunity or Congress has overridden it. Graham, 105 S.Ct. at 3106 n. 14; Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114; Gleason v. Board of Education of the City of Chicago, 792 F.2d 76, 79 (7th Cir.1986). With these principles in mind, the nature of the suits filed in the instant case will be examined. It is not perfectly clear what types of suits have been brought by Barry and Ga-rold against Lance and DCFS. Paragraph 4 of Count I of the federal Complaint, which represents Barry’s suit for relief and also serves as Garold’s suit for relief under Count II, states as follows: 4. Each and all of the acts of the Defendants alleged herein were done by Defendants and each of" }, { "docid": "16514234", "title": "", "text": "agencies acting under its control, or as “arms of the state.” See Welch v. Texas Dept. of Highways and Pub. Transp., 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987) (per curiam); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). “The Eleventh Amendment prohibits federal courts from exercising subject matter jurisdiction in suits brought against a state by a citizen of that state. The amendment applies even when a state is not named as a party of record, if for all practical purposes the action is against the state. Thus, the Eleventh Amendment extends to state agencies and other arms of the state.” The Eleventh Amendment prohibits actions against state courts and state bars. Kaimowitz v. The Florida Bar, 996 F.2d 1151, 1155 (11th Cir.1993) (citations omitted) (quoting Schopler v. Bliss, 903 F.2d 1373, 1378 (11th Cir.1990)). Next, McFarland’s demands for monetary relief against all defendants in their official capacities are barred by the Eleventh Amendment and due to be dismissed. Although the express language of the amendment does not bar suits against a state by its own citizens, the Supreme Court has held that an unconsenting state is immune from lawsuits brought in federal court by the state’s own citizens. Lawsuits against a state official in his or her official capacity are suits against the state when “the state is the real party in interest.” In these eases, the state is considered the real party in interest because an award of damages would be paid by the state. Carr v. City of Florence, Alabama, 916 F.2d 1521, 1524 (11th Cir.1990) (citations omitted) (quoting Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984)); see Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., - U.S. -, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Quern v. Jordan, 440 U.S. 332, 99" }, { "docid": "653974", "title": "", "text": "another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. That language seems plain enough, but eleventh amendment jurisprudence has not precisely followed the text of the amendment. Heavily influenced by the judicially created doctrine of sovereign immunity, see Port Auth. Trans-Hudson Corp. v. Feeney, — U.S. -, 110 S.Ct. 1868, 1872, 109 L.Ed.2d 264 (1990) [hereinafter PATH], the Supreme Court has broadened the amendment’s language in some respects and narrowed it in others. Today, eleventh amendment issues may arise whenever a private party files a federal lawsuit against a state, a state agency, or a state official. The effect of the amendment may differ, however, depending on the category of defendant. Brunken v. Lance, 807 F.2d 1325, 1328-29 (7th Cir.1986). We therefore begin an eleventh amendment analysis by looking at the caption of the lawsuit. Private party suits against a state are easy to identify and the analysis is relatively straightforward. Put simply, a state may claim immunity from suit in federal court and must be dismissed from the litigation unless there exists one of two well-established exceptions. See id.; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). First, a state may by unequivocal language waive the protections of the eleventh amendment and thereby consent to suit in federal court. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, Congress may by unequivocal language use its enforcement powers under the fourteenth amendment to abrogate the states’ eleventh amendment immunity. See id.; see also id. at 246, 105 S.Ct. at 3149 (“When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) [hereinafter Pennhurst II] (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). State agencies are treated the same as states. See Pugh, 438 U.S. at 781-82, 98 S.Ct. at 3057-58; Gleason v. Board of Educ., 792" }, { "docid": "653975", "title": "", "text": "litigation unless there exists one of two well-established exceptions. See id.; Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). First, a state may by unequivocal language waive the protections of the eleventh amendment and thereby consent to suit in federal court. See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). Second, Congress may by unequivocal language use its enforcement powers under the fourteenth amendment to abrogate the states’ eleventh amendment immunity. See id.; see also id. at 246, 105 S.Ct. at 3149 (“When Congress chooses to subject the States to federal jurisdiction, it must do so specifically.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) [hereinafter Pennhurst II] (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). State agencies are treated the same as states. See Pugh, 438 U.S. at 781-82, 98 S.Ct. at 3057-58; Gleason v. Board of Educ., 792 F.2d 76, 79 (7th Cir.1986). Indeed, a state agency is the state for purposes of the eleventh amendment. Davidson v. Board of Govs., 920 F.2d 441, 442 (7th Cir.1990); see also Pennhurst II, 465 U.S. at 100, 104 S.Ct. at 907 (“It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the eleventh amendment.”). This is so, moreover, “regardless of the nature of the relief sought.” Id.; Gleason, 792 F.2d at 79. The only new issue, therefore, is whether a particular defendant is really a state agency, i.e., whether an entity is more like “ ‘an arm of the State’ ” than a county or city. Kashani v. Purdue Univ., 813 F.2d 843, 845 (7th Cir.) (quoting Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977)), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987); see also" }, { "docid": "18559918", "title": "", "text": "teaching position. Upon receipt of motions pursuant to Fed.R.Civ.P. 12(b)(6), the district court dismissed the case without opinion. This appeal followed. II The State Board claims that it is not subject to suit in federal court. The district court, despite full briefing of the issue by the parties, did not rule on the question and, instead, dismissed the complaint for failure to state a claim upon which relief could be granted. However, it is appropriate to deal first with this threshold matter. The eleventh amendment “prohibits federal courts from entertaining suits by private parties against States and their agencies.” Alabama v. Pugh, 438 U.S. 781, 781, 98 S.Ct. 3057, 3057, 57 L.Ed.2d 1114 (1978). “This jurisdictional bar applies regardless of the nature of the relief sought.” Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). The State Board, an Illinois state agency, is therefore absolutely immune from liability under 42 U.S.C. § 1983. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908; Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979); Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690 n. 54, 98 S.Ct. 2018, 2035 n. 54, 56 L.Ed.2d 611 (1978). Mr. Gleason argues that Quern distinguishes between prospective and retrospective relief and concludes that a federal court “may enjoin state officials to conform their future conduct to the requirements of federal law____” 440 U.S. at 337, 99 S.Ct. at 1143; see Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). However, Quern was a suit brought against an official not an agency. Here, the agency alone, not its officials, is named as a party defendant. Such a suit is barred by the eleventh amendment “regardless of the nature of the relief sought.” Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908. Ill The final issue on this appeal is whether, with respect to the Chicago Board, the complaint stated a claim upon which relief could be granted. We agree with the" }, { "docid": "827377", "title": "", "text": "842 (1890) (holding that federal court cannot entertain suit' brought by citizen against own state); Ford Motor Co. v. Department of Treasury 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945) (holding that Eleventh Amendment bars suit against state officials when the state is the real, substantial party in interest); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (holding that some forms of injunctive relief against state officials for violations of federal law are barred); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (holding that Eleventh Amendment bars suits for retrospective monetary relief against state); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (holding that 42 U.S.C. § 1983 does not override states’ Eleventh Amendment immunity), and others, can now be added the hauberk designed by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (holding that Eleventh Amendment bars federal court award of injunctive relief against state officials on the basis of state law). Some chinks remain in the state’s armor: Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780 (1883) (holding state may consent to suit against it in federal court); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) (holding that Eleventh Amendment did not prohibit issuance of injunction by federal court against state officer); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (holding that Congress may abrogate state’s Eleventh Amendment immunity); see New Hampshire v. Brosseau, 124 N.H. 184, 470 A.2d 869, 874 (1983) (if and when Court reaches constitutionality of sovereign immunity, it would be disposed to reconsider validity of doctrine as it exists today). This Court therefore is asked to determine the existence and extent of New Hampshire’s immunity from suit under the Eleventh Amendment. Quinn, allegedly a Delaware corporation, Complaint U 6, seeks to sue the State of New Hampshire in federal court. By its literal terms, the Eleventh Amendment bars actions in federal court against a" }, { "docid": "977079", "title": "", "text": "at 2232-2233. Moreover, the court is aware that the threshold that a complaint must meet to survive a motion to dismiss for failure to state a claim is “exceedingly low.” Aneata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985) (citation omitted). IV. DISCUSSION A. ELEVENTH AMENDMENT IMMUNITY Morgan and Lovelace contend that the Eleventh Amendment bars all claims Malone makes against them in their official capacities. This broad contention requires the court to perform a thorough analysis of Eleventh Amendment immunity. The Eleventh Amendment provides that [t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state. U.S. Const, amend. XI. The Eleventh Amendment also proscribes suits by citizens against their own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). It is well established that the states and then-agencies are immune from suit for monetary damages. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-1356, 39 L.Ed.2d 662 (1974). Additionally, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the Supreme Court held that actions for injunctive relief against a state or its instrumentalities were not an exception to the Eleventh Amendment bar. In fact, the Supreme Court has explained that the Eleventh Amendment prohibits a federal court from exercising jurisdiction over a lawsuit against a state, except where the state has consented to be sued or waived its immunity, or where Congress has overridden the state’s immunity. See, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-908, 79 L.Ed.2d 67 (1984); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Supreme Court addressed the question of whether the Eleventh Amendment shield of sovereign immunity protected a state and its officials from a suit for" }, { "docid": "18281996", "title": "", "text": "their reason for plaintiff’s termination, although they do not specifically address their rejection of plaintiff’s application for the position of deputy director of nursing. According to defendants the plaintiff was hired for a term appointment pursuant to New York State Codes, Rules, and Regulations, Chapter V, Parts 335 and 338. She was untenured and had no vested right to continued employment at the Hospital. This arrangement coupled with her unsatisfactory work performance evaluations suggest a legitimate nondiscriminatory reason for termination. Whether plaintiff could show that this reason was a mere pretext to mask the defendants’ invidious discrimination is difficult for the Court to predict with certainty. Suffice to say, however, we do not believe that plaintiff enjoys a probability of success on the merits. 2. Section 1983 To state a cause of action under Section 1983 a complaint must contain two critical allegations: (1) deprivation of a federal right (2) by a “person” acting “under color of state law.” The word “person” in the statute has been construed broadly and includes cities, counties and other local government entities. See R. Richey, Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts, p. D2-2 (rev. ed. 1984), and cases cited therein. However, a State is not a proper defendant to a § 1983 action, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), absent an express waiver of its sovereign immunity, Florida Dep’t of Health and Rehabilitation Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), or in cases where prospective injunctive relief is sought, Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Similarly this immunity bars suits against State agencies or any “arm” of the State. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Florida Dep’t of Health and Rehabilitation Services, supra, 450 U.S. 147," }, { "docid": "23561217", "title": "", "text": "389 (1945). The Amendment, however, does not bar such suits where the state has waived its immunity, see Atascadero , State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985), Congress validly has abrogated the state’s immunity under the Fourteenth Amendment, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), or the well-established exception of Ex Parte Young, 209 U.S. 123, 28 act 441, 52 L.Ed. 714 (1908), applies. Of these narrow exceptions, the only one that arguably applies in this case is that under Young. The principle which ¿merges from Young and its progeny is that a state official sued in his official capacity for prospective injunctive relief is a person within section 1983, and the Eleventh Amendment does not bar such a suit; See Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 362-63, 116 L.Ed.2d 301 (1991); Will v. Michigan Department of State Police, 491 U.S. 58, 71 n. 10,109 S.Ct. 2304, 2312 n. 10, 105 L.Ed.2d 45 (1989); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985) (“[O]fficial-capacity actions for prospective relief are not treated as actions against the State.”) (citing Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714). Thus, the Eleventh Amendment does not bar this claim against the Secretary, provided that the relief appellants seek properly is construed as “prospective injunctive relief’ or is ancillary to such relief. See Quern v. Jordan, 440 U.S. 332, 347-49, 99 S.Ct. 1139, 1148-49, 59 L.Ed.2d 358 (1979). The type of prospective relief permitted under Young is relief intended to prevent a continuing violation of federal law. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 688, 121 L.Ed.2d 605 (1993) (the Young exception “does not permit judgments against state officers declaring that they violated federal law in the past”); Papasan v. Allain, 478 U.S. 265, 277-78, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986) (the focus of the Young exception" }, { "docid": "16630878", "title": "", "text": "Amended Complaint. In any event, the defendants correctly contend that this Court has no jurisdiction against them in their official capacities. The Eleventh Amendment to the United States Constitution bars suits against a state by its own citizens. Hans v. Louisiana, 134 U.S. 1, 20, 10 S.Ct. 504, 509, 33 L.Ed. 842 (1890); see also Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). A suit against a state or its officials contravenes the Eleventh Amendment irrespective of the suit being based upon federal or state law. Pennhurst State School & Hosp. v. Halderman, 465 U.S. at 119-21, 104 S.Ct. at 918-19; see also Kentucky v. Graham, 473 U.S. 159,167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-29, 72 L.Ed.2d 694 (1982). This jurisdictional bar applies regardless of the nature of the relief sought. Id. at 100, 102 S.Ct. at 2334. The State of Michigan thus has immunity from civil actions by private plaintiffs unless the state has waived its immunity, or Congress has by statute expressly abrogated the Eleventh Amendment immunity. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58, 57 L.Ed.2d 1114 (1978). Michigan has not consented to suit, Karchefske v. Department of Mental Health, 143 Mich.App. 1, 371 N.W.2d 876 (1985); Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641 (1984), and Congress has not expressly abrogated Eleventh Amendment immunity from § 1983 lawsuits. Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139,1145, 59 L.Ed.2d 358 (1979). Immunity under the Eleventh Amendment extends to state agencies or departments that function as arms of the state. Alabama v. Pugh, 438 U.S. at 782, 98 S.Ct. 3057-58; Ohio v. Madeline Marie Nursing Homes 1 and 2, 694 F.2d 449, 458 (6th Cir.1982). The Michigan Department of State Police is a department of the State of Michigan, and therefore is entitled to immunity. Because the Michigan Department of State Police is immune from liability in this suit, the defendants in" }, { "docid": "4904596", "title": "", "text": "of Section 1983 and because as a state university it is an arm of the state and therefore able to invoke the doctrine of sovereign immunity. Although it has debated the issue in dicta, the Supreme Court has never decided whether a state is a “person” for purposes of Section 1983. Cf., e. g., Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (Stevens dissenting); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) (Brennan concurring) (Powell concurring and dissenting). The question has become insignificant, however, because of recent Supreme Court decisions holding that under the Eleventh Amendment, federal courts lack jurisdiction over states or their agents. See, Alabama v. Pugh, supra; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Eleventh Amendment bars any action in law or in equity against one of the States by the citizens of another State, or citizens of another country. Missouri v. Fiske, 290 U.S. 18, 54 S.Ct. 18, 78 L.Ed. 145 (1933). Although the amendment does not bar a suit for prospective, equitable relief against state officers, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court has frequently said that suits for retrospective, monetary relief are barred. See, e. g., Quern v. Jordan, supra. The Court extended this reasoning, in Alabama v. Pugh, supra, to include cases against states involving only injunctive relief. There, the district court had determined that Alabama’s prison conditions amounted to cruel and unusual punishment, and issued an order prescribing measures designed to remedy the plaintiff’s plight. On appeal, the Court, per curiam, dismissed as defendant the State of Alabama and the Alabama Board of Corrections because of Eleventh Amendment sovereign immunity. In reaching its conclusion, the Court stated at 3057-3058 of 98 S.Ct.: Among the claims raised here by petitioners is that the issuance of a mandatory injunction against the State of Alabama and the Alabama Board of Corrections is unconstitutional because the Eleventh Amendment" }, { "docid": "977080", "title": "", "text": "monetary damages. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-1356, 39 L.Ed.2d 662 (1974). Additionally, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the Supreme Court held that actions for injunctive relief against a state or its instrumentalities were not an exception to the Eleventh Amendment bar. In fact, the Supreme Court has explained that the Eleventh Amendment prohibits a federal court from exercising jurisdiction over a lawsuit against a state, except where the state has consented to be sued or waived its immunity, or where Congress has overridden the state’s immunity. See, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-908, 79 L.Ed.2d 67 (1984); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). In Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Supreme Court addressed the question of whether the Eleventh Amendment shield of sovereign immunity protected a state and its officials from a suit for damages brought pursuant to Title VII of the Civil Rights Act. Id. at 447-448, 96 S.Ct. at 2667-2668. After recognizing the fact that Title VII was passed pursuant to Congress’ authority under § 5 of the Fourteenth Amendment, the Court held that “the Eleventh Amendment, and the principle of state sovereignty which it embodies are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” Id. at 456, 96 S.Ct. at 2671. Thus, the Eleventh Amendment is not a bar to Malone’s claims under Title VII. To the extent that Morgan and Lovelace base their Motion to Dismiss on Eleventh Amendment immunity from Title VII claims it is due to be DENIED. Although the Eleventh Amendment provides a bar to some kinds of claims under Section 1983, the Eleventh Amendment is not a complete bar. The Eleventh Amendment does not insulate state officials acting in their official capacities from suit for prospective injunctive relief to remedy violations of federal constitutional law. See, Edelman, 415 U.S. at 664-671, 94 S.Ct. at 1356-1360; Scheuer" }, { "docid": "18130416", "title": "", "text": "at 208-209,) Further, citing to the Rule 56.1 Statement, the Plaintiff alleges that Ritchie contacted the defendants in the OGS Action before hiring him. However, that assertion is inaccurate because there is no indication that Ritchie communicated with any of the three individual defendants • in the OGS Action. Despite these infirmities, the Court, of course, will seriously consider the Plaintiffs arguments. 2. The Claims Against the Defendants in their Official Capacities The Defendants are each sued in their personal and official capacities. (Compl., at 8, 10, 12.) However, “[t]he Eleventh Amendment bars suits in federal court by citizens against a state and its agencies, absent a waiver of immunity or Congressional legislation specifically overriding immunity.” Martinez v. Healey, No. 14-CV-302 (NSR), 2014 WL 5090056, at *6 (S.D.N.Y. Oct. 10, 2014) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). It is well-established that New York State has not consented to Section 1983 suits in federal court, Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir.1977), and that Section 1983 was not intended to override a state’s sovereign immunity, Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, because a Section 1983 claim against a New York state official in his or her official capacity is deemed to be a suit against the state of New York, Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Eleventh Amendment precludes any such claim. Under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), a “plaintiff may avoid the Eleventh Amendment bar to suit and proceed against individual state officers, as opposed to the state, in their official capacities, provided that [her] complaint[:] (a) alleges an ongoing violation of federal law[;] and (b) seeks relief properly characterized as prospective.” Clark v. DiNapoli, 510 Fed.Appx. 49, 51 (2d Cir.2013) (internal quotation marks and citation omitted). In this case, as the Plaintiff has not been employed by DEC for more than two years,' he fails" }, { "docid": "21884772", "title": "", "text": "power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state. U.S. Const. amend. XI. The Eleventh Amendment also proscribes suits by citizens against their own state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). It is well established that the states and their agencies are immune from suit for monetary damages. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974). Additionally, in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the Supreme Court held that actions for injunctive relief against a state or its instrumentalities were not an exception to the Eleventh Amendment bar. In fact, the Supreme Court has explained that the Eleventh Amendment prohibits a federal court from exercising jurisdiction over a lawsuit against a state, except where the state has consented to be sued or waived its immunity, or where Congress has overridden the state’s immunity. See, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-08, 79 L.Ed.2d 67 (1984); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). Although the Eleventh Amendment provides a bar to some kinds of claims under Section 1983, the Eleventh Amendment is not a complete bar. The Eleventh Amendment does not insulate state officials acting in their official capacities from suit for prospective injunctive relief to remedy violations of federal constitutional law. See, Edelman, 415 U.S. at 664-671, 94 S.Ct. at 1356; Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908). In such cases, it is the individual and not the state which is being sued, and when a state official acts unconstitutionally, he is stripped of his official or representative character and Eleventh Amendment protection. Ex parte Young, 209 U.S." }, { "docid": "18281997", "title": "", "text": "local government entities. See R. Richey, Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts, p. D2-2 (rev. ed. 1984), and cases cited therein. However, a State is not a proper defendant to a § 1983 action, Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), absent an express waiver of its sovereign immunity, Florida Dep’t of Health and Rehabilitation Services v. Florida Nursing Home Ass’n, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), or in cases where prospective injunctive relief is sought, Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Similarly this immunity bars suits against State agencies or any “arm” of the State. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Florida Dep’t of Health and Rehabilitation Services, supra, 450 U.S. 147, 101 S.Ct. 132. Therefore, as the complaint now reads, plaintiff has little likelihood of succeeding on the merits of her § 1983 claim because the defendants appear to be protected from suit by the Eleventh Amendment. D. Sufficiently Serious Questions Going To The Merits Although, unable to conclude that plaintiff has evinced a likelihood of success on the merits, the Court is more willing to acknowledge that plaintiff’s papers may pose sufficiently serious questions going to the merits to satisfy the first part of the alternative second prong of the preliminary injunction standard. If supported at trial, plaintiff’s allegations (or amended allegations) could lead a finder of fact to decide that Williams was treated differently from her peers and that this treatment was at least partially attributable to her race, sex or national origin. The underlying discriminatory intent need not be the sole or even the dominant factor behind the decision to terminate the plaintiff. “It is sufficient for it to be a motivating factor.” Little v. United States, 489 F.Supp. 1012, 1023 (D.Ill.1980) (citing" }, { "docid": "16412285", "title": "", "text": "are not injured. Specifically the State defendants allege that black students attending a school with a lower percentage of black students than the percentage of blacks in the community or white students attending a school with a higher, percentage of black students than the percentage of blacks in the community can prove no injury. The analysis permitted pursuant to a Rule 12 motion to dismiss does not include the factual analysis required by the State defendant’s challenge. This court is unable to say that the individual plaintiffs can prove no set of facts in support of their claims. Therefore, the State defendants’ motion to dismiss premised upon a challenge to specific individual plaintiffs’ standing is denied. ELEVENTH AMENDMENT The history of Eleventh Amendment jurisprudence clearly illustrates that a State and its agencies are treated differently, for the purposes of immunity, than state officials sued in their official capacity or personal capacity. See, Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The significance of that difference is apparent in the long line of cases which consistently hold that a state and its agencies shall be immune from suit in federal court unless the state consents to such suit or Congress expressly abrogates the states’ Eleventh Amendment immunity. Papasan v. Allain, — U.S. -, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), reh’g denied, — U.S. -, 106 S.Ct. 900, 88 L.Ed.2d 933 (1986); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242-243, 105 S.Ct. 3142, 3147-3148, 87 L.Ed.2d 171 (1985); Kentucky v. Graham, 473 U.S. 159, 167 fn. 14, 105 S.Ct. 3099, 3106 fn. 14, 87 L.Ed.2d 114 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99-101, 104 S.Ct. 900, 907-908, 79 L.Ed.2d 67 (1984); Cory v. White, 457 U.S. 85, 90-91, 102 S.Ct. 2325, 2328-2329, 72 L.Ed.2d 694 (1982); Quern v. Jordan, 440 U.S. 332, 339-340, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Mittiken" }, { "docid": "739714", "title": "", "text": "not override Eleventh Amendment protection. That is, regardless of the federal jurisdictional basis over a particular claim, the Eleventh Amendment protects state officials from claims alleging violations of state law. Id. 104 S.Ct. at 919. The Supreme Court has long been protective of the states’ Eleventh Amendment immunity and has severely limited any exceptions which threaten to impinge on that immunity. The primary exceptions to the immunity doctrine are found in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), providing that actions challenging the constitutionality of state officials’ conduct are not against the state, and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), providing that violations of federal law may be remedied by injunctions against state officials’ future conduct but not by retroactive monetary damages. The Court concluded in Pennhurst that neither Young nor Edelman is applicable in state law suits against state officials. Pennhurst, 104 S.Ct. at 911. This conclusion was hardly novel, however. As the Court itself stated, a contrary approach “is out .of touch with reality”. Id. In an extensive discussion of prior law, the Court noted that none of its prior Eleventh Amendment or federal sovereign immunity cases authorize injunctive relief against state officials for failing to perform their state law duties. Id. at 913. “The plain fact is that the dissent’s broad theory ... has not been the law for at least a generation.” Id. at 916. In discussing the effect of pendent jurisdiction on the Eleventh Amendment, the Court reiterated its view that the Eleventh Amendment may preclude a federal court from hearing claims otherwise within its jurisdiction. Id. at 918-19. Pendent jurisdiction, a judge-made doctrine utilized to promote judicial efficiency, does not override the strictures of the Eleventh Amendment. Id. at 919. As the Court again noted, the concept of the superiority of the Eleventh Amendment is hardly new. Id. at 918-19 (citing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) and Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam)). “Our" }, { "docid": "23491903", "title": "", "text": "E.g., Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Absent consent by the state or abrogation by Congress, an action in which the state is the named defendant is prohibited by the eleventh amendment. See, e.g., Florida Department of Health v. Florida Nursing Home Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). An important exception to this general rule was recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). There, the Supreme Court held that the eleventh amendment did not bar the federal courts from enjoining a state official from enforcing a state statute which allegedly violated the fourteenth amendment. Id. at 155-58, 28 S.Ct. at 452-53. Under the theory of Young, an action against a state official is not one against the state. The eleventh amendment is thereby avoided. See Pennhurst State School and Hospital v. Halderman, — U.S.-, 104 S.Ct. 900, 908-09, 79 L.Ed.2d 67 (1984). “[T]he Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’ ” Id. 104 5. Ct. at 910, quoting Young, 209 U.S. at 160, 28 S.Ct. at 454; see, e.g., Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Young exception is only applicable, however, where prospective relief is sought. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In Edelman, appellants sought an injunction as well as damages. The Court held that injunctive relief was proper but the monetary relief, as a form of retroactive relief, was not. Id. at 664-65, 94 S.Ct. at 1356-57. Edelman represents an effort to balance the immunity of the states with the need to fulfill the underlying purpose of Ex parte Young. See Pennhurst, 104 S.Ct. at 910-11. Because Edelman reminds us that" } ]

[ { "docid": "22780656", "title": "", "text": "Mr. Justice Field delivered the opinion of the court. This is a suit in equity to restrain the defendants. D. Trainer & Sons, from using on ticking manufactured and sold by them the letters “ A. C. A.” in the sequence here named, alleged by the complainant to be its trade-mark, by which it designates ticking of a particular quality of its own manufacture; and to compel the defendants to account for the profits made by them on sales of ticking thus marked. It appears that the complainant, the Amoskeag Manufacturing Company, a corporation created under the laws of New Hampshire, commenced the manufacture of ticking at Amoskeag Falls, in that State, some time prior to 1884, and marked its products with a label or ticket consisting of a certain device, within which were printed, in red colors, the name of the company, its place of manufacture, the words “ Power Loom,” and in the centre the single letter “ A ” or “ B ” or “ C ” or “ D,” according to the grade of excellence of the goods, the first quality being indicated by the first letter and the decreasing quality from that grade by subsequent letters in the alphabet. The device, apart from the words mentioned, was a fancy boi’der in red colors, square outside and elliptical within, and the words in the upper and lower lines of the label were printed in a line corresponding with the inside curve of the border. In the year 1834, or about that time, the company introduced an improvement in its manufacture, by which it produced a grade or quality of ticking superior to any which it had previously manufactured. For goods of this quality it used in its label or ticket, in place of the single letter “ A,” the three letters “ A. C. A.” The original device, with its colored border and printed words, indicating the company by which and the place where the goods were manufactured was retained; the only alteration consisting in the substitution of the three letters “ A. C. A.” in" } ]

[ { "docid": "21816235", "title": "", "text": "MORRIS, District Judge. The basic-question here presented is one of trade-mark infringement. “Nujol,” a coined, arbitrary word, was adopted, used, and registered by the plaintiff in the year 1915 as its trademark for refined mineral oil for use in the treatment of constipation. Three subsequent registrations for other uses have been made. Between the time of its adoption and the end of 1926, the plaintiff sold more than 27,000,-000 bottles so labeled, and by the end of 1927 it had invested more than $6,000,000 in advertisements in which “Nujol” was prominently featured. In 1926 “NUJOL treated FIGS,” a laxative, processed, packed, and labeled by the defendant, appeared upon the market. To justify its use of plaintiff’s trade-mark, the defendant takes the position that no one receiving a package of figs would believe that he was receiving a bottle of oil, that the two articles are not of the same class, and that plaintiff’s exclusive right to the use of its mark is limited to goods of the same class. It is true, I think, that since a trademark confers on its owner no right in gross or at large, like a statutory copyright or a patent for an invention, United Drug Co. v. Rectanus Co., 248 H. S. 90, 97, 39 S. Ct. 48, 63 L. Ed. 141, and since its sole office is to indicate that the goods of the same general class to .which it is attached emanate from a single source or reach the consumer through the same channels of trade, Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-413, 36 S. Ct. 357, 60 L. Ed. 713, the proprietor of a trade-mark is without right to forbid or exclude the use of the same mark, words, or symbol by another upon goods of a class and quality so different from those of the original user as to preclude the probability that purchasers will be misled into believing that the different articles spring from a common source, Schechteris Historical Foundations of Trade-Mark Law, pp. 146-150; Nims on Unfair Competition and Trade-Marks, § 221; Hanover Milling Co." }, { "docid": "13588478", "title": "", "text": "on a name cannot prohibit others from using that name as a grade mark to distinguish the quality of an article. Continental Corporation v. National Union Radio Corporation, 7 Cir., 67 F.2d 938; Columbia Mill Company v. Alcorn, 150 U. S. 460, 14 S.Ct. 151, 37 L.Ed. 1144. But, as we read the record in this case, there is no justification for the inference drawn by the Master and approved by the District Judge that the manner of usage by appellee of “Champs” classifies the word as a grade mark and not a trade-mark. Applying the principles of the cases which have been discussed, the reverse conclusion seems obvious. See, especially, Thomas G. Plant Co. v. May Co., supra, and cases there cited. See, also, Chesebrough Manufacturing Co. v. Old Gold Chemical Co., Inc., 6 Cir., 70 F.2d 383; and Ammon & Person v. Narragansett Dairy Co., D.C., 252 F. 276 (affirmed in 1 Cir., 262 F. 880), in which the comment was made at page 278 of the opinion that “neither subtractions from nor additions to a trade-mark proper will avoid infringement, when such imitation as is likely to lead to confusion still remains despite the changes.” (3) Assuming that appellant has failed to prove that appellee had knowledge of the former’s trade-mark — although information could have been easily acquired by inquiry at the patent office — and assuming further that it has not been shown that appellee intended to reap the benefit of appellant’s goodwill by palming off its own product for that of appellee, an injunction should nevertheless be granted to protect appellee’s trade-mark. As was said in O. & W. Thum Co. v. Dickinson, 6 Cir., 245 F. 609, 615: “It is not necessary to the maintenance of a charge of infringement of a trade-mark to prove ,a distinct intent on the part of the infringer; it is the fact of infringement and the consequent invasion of the good w.ill and business of the owner of the mark that is controlling ; the intent will be presumed.” See, also, De Voe Snuff Co. v. Wolff," }, { "docid": "22466490", "title": "", "text": "conducted with the intent on the part of the defendant to avail itself of the reputation of the plaintiff to palm off its goods as plaintiff’s, would, in a proper case, constitute ground for relief.” In the last case in which this subject is considered—Elgin Nat. Watch Co. v. Illinois Watch-Case Co., 179 U. S. 665, 674, 21 Sup. Ct. 270, 45 L. Ed. 365, a suit for the infringement of a trademark — that court held, in accordance with the established rule, that the word “Elgin” was not susceptible of monopolization as a trademark. But it also reviewed with approval Wotherspoon v. Currie and Beddaway v. Banham, and said upon this subject: “But it is contended that the name ‘Elgin’ had acquired a secondary signification in connection with its use by appellant, and should not, for that reason, be considered or treated as merely a geographical name. It is undoubtedly true that, where such a secondary signification has been acquired, its use in that sense will be protected by restraining the use of the word by others in such a way as to amount to a fraud on the public, and on those to whose employment of it the special meaning has become attached.” From the opinions which have now been reviewed' and the authorities cited below the following principles may be safely deduced: 1. The sale of the goods of one manufacturer or vendor as those of another is unfair competition, and constitutes a fraud which a court of equity may lawfully prevent by injunction. Manufacturing Co. v. Spear, 2 Sandf. 599; Seixo v. Provezende, 1 Ch. App. 192, 194; Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847. 2. Geographical terms and words descriptive of the character, quality, or places of manufacture or of sale of articles cannot be monopolized as trade-marks. Canal Co. v. Clark, 13 Wall. 311, 321, 20 L. Ed. 581; Mill Co. v. Alcorn, 150 U. S. 464, 14 Sup. Ct. 151, 37 L. Ed. 1144; Chemical Co. v. Meyer, 139 U. S. 540, 546, 11" }, { "docid": "21351170", "title": "", "text": "Regis began to use the word “Rex” as a trade-mark for certain medicinal preparations made by her in Haverhill, Mass. Thereafter, through mesne assignments and continued use, this trade-mark came, about the year 1911, into the hands of the United Drug Company. During all of the years between 1877 and 1911 the sales of this medicinal preparation were confined to the New England states, with inconsiderable sales in New York, New Jersey, Canada, and Nova Scotia. In the meantime, and in the year 1889, one Reetanus, familiarly known as “Rex,” began at Louisville, Ky., to use the word “Rex” as a trade-mark for another sort of medicinal preparation, which he sold and advertised in Kentucky. In 1912 the United Drug Company for the first time extended the sale of its medicines, bearing its “Rex” trade-mark, into the state of Kentucky. When it did so, and prior thereto, it had notice that the assignee of Reetanus was using the identical trade-mark in Kentucky on its medicines. These facts and all of them notwithstanding the United Drug Company sued the Reetanus Company for the infringement of its trade-mark. In the Supreme Court the decree went for defendant; the court saying, among other things, this: “Undoubtedly, the general rule is that, as between conflicting claimants to the right to use the same mark, priority of appropriation determines the question. See Delaware & H. Canal Co. v. Clark, 13 Wall. 311, 323, 20 L. Ed. 581; McLean v. Fleming, 96 U. S. 245, 251, 24 L. Ed. 828; Amoskeag Manufacturing Co. v. Trainer, 101 U. S. 51, 53, 25 L. Ed. 993; Columbia Mill Co. v. Alcorn, 150 U. S. 460, 463, 14 S. Ct. 151, 37 L. Ed. 1144. But the reason is that purchasers have come to understand the mark as indicating the origin of the wares, so that its use ,by a second producer amounts to an attempt to sell his goods as those of his competitor. The reason for the rule does not extend to a case where the same trade-mark happens to be employed, simultaneously by two manufacturers, in" }, { "docid": "22466471", "title": "", "text": "Ch. App. 155, 161; Flour-Mills Co. v. Eagle, 86 Fed. 608, 628, 30 C. C. A. 386, 406, 41 L. R. A. 162; Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118. This is not a suit for the infringement of a trade-mark. It is a suit for unfair competition, for selling goods of the appellee as those of another. For this reason no proprietary interest in the word “American” or in the names whose use is enjoined was essential to the issue of the injunction. For the same reason this case is not governed nor affected by the principle that geographical terms and words descriptive of the character, quality, or place of manufacture of an article.are not capable of monopolization as trade-marks. Canal Co. v. Clark, 13 Wall. 311, 321, 20 L. Ed. 581; Mill Co. v. Alcorn, 150 U. S. 460, 464, 14 Sup. Ct. 151, 37 L. Ed. 1144; Iron Co. v. Uhler, 75 Pa. 467, 15 Am. Rep. 599; Chemical Co. v. Meyer, 139 U. S. 540, 546, 11 Sup. Ct. 625, 35 L. Ed. 247; Continental Ins. Co. v. Continental Fire Ass’n (C. C.) 96 Fed. 846. There is no claim that the words whose use is enjoined constituted trade-mark^, but this case rests upon the broad proposition that every man must so use his own as to inflict no unnecessary damage upon his neighbor. Under this principle the appellants had the right to buy and sell ball blue, but they had not the privilege to so exercise that right as to unnecessarily injure the ,business of the appellee. Right here is the broad distinction between this case and Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118; Centaur Co. v. Heinsfurter, 84 Fed. 955, 958, 28 C. C. A. 581, 584, 56 U. S. App. 7, 13; and Centaur Co. v. Marshall, 97 Fed. 785, 38 C. C." }, { "docid": "15645847", "title": "", "text": "acts of the defendants so complained of; “(e) Awarding the plaintiff its proper costs herein. “2. Denying the relief prayed for by the defendants in their cross-complaint and dismissing said cross-complaint for want of equity.” However, paragraph 2 of the decree perpetually enjoins Purvis D. Jackson and Continental Corporation, or either of them, their officers, agents, clerks, etc., from using the word “National” in their business of handling and selling radio tubes, while the reeom'mendation of the special master 'was that Jackson and the Continental Corporation, doing business under the.name and style of “National Tube Mfg. Company,” be enjoined from using the word “National” on radio tubes, etc., in such manner as might tend to confuse or deceive others into believing that the tubes thus advertised are the tubes of the National Union Radio Corporation; nor does the decree make provision for the recommendation of the special master contained in item (e), paragraph 1, as follows: “Enjoining said defendants, doing business as Continental Corporation, from using the word ‘National’ on radio tubes except as a brand or grade mark on tubes of inferior quality, known as Grade B or ‘seconds’ and then only when such tubes are plainly so marked and advertised.” A trade-mark is created chiefly by use which must be general, continuous, and exclusive and applied to goods and used in trade under such circumstances of publicity and length of use as to ^how an intention to adopt the mark for specific goods and to have become known as the distinguishing mark for such goods. In re Trade-Mark Cases,. 100 U. S. 82, 25 L. Ed. 550; Bennett & Sons v. Farmers’ Seed & Gin Co. (C. C. A.) 288 F. 365; Coty, Inc., v. LeBlume Import Co., Inc. (D. C.) 292 F. 264; Nims, The Law of Unfair Competition and Trademark, § 186; 38 Cyc. 692, note 67. Applying this rule, the special master found that appellee had a valid, existing trade-mark and that appellants have not. It is inseparable from the good will and cannot exist in gross. United Drug v. Rectanus, 248 U. S. 90," }, { "docid": "15645833", "title": "", "text": "was entered. The special master’s findings of fact were very minute and carefully made. The gist of the findings is that appellants bought radio tubes ii> the open market wherever they got the best prices, graded them themselves’ as firsts and seconds; the highest types were graded “A,” or, “Firsts”; the second grade was “B”; and the poorer qualities given other grades; that “National” was the grade-mark used by appellants on second grade, “B,” tubes. In other words, that with appellants the word “National” was a grade-mark and not a trade-mark; that their advertising and methods of doing business were unfair and appellants were guilty of unfair competition, as charged in appellee’s bill of complaint. Respecting the trade-mark infringement, appellants admit that the radio tubes manufactured by appellee are sold under the trademark of “National Union” with “National” marked in prominent type or design and “Union” in minor type or design, and its tubes are generally known among jobbers, distributors, set manufacturers, and radio set users as “National” tubes. That the trademark is affixed to all radio tubes and packages containing appellee’s products; that the trade-marks “National” and “National Union” are an arbitrary designation and were selected and adopted by appellee and its predecessor in interest in or about the year 1926 to designate the goods marketed by appellee and its predecessors; that these trademarks have been continuously used by appellee and its predecessor from the beginning; that appellee and its predecessors have sold millions of dollars’ worth of radio tubes bearing the trade-marks “National” and “National Union” in the city of Chicago and elsewhere throughout the United States; that the trade-mark “National Union” was officially recognized by the granting by the United. States Patent Office of a trade-mark bearing said words on August 4, 1931. Appellants do not deny any of the allegations of paragraphs 16, 11,12, and 13 of the bill showing appellee was capitalized for 1,666,666 shares at no par value, which were offered and sold to the public at $46 per share; that said capital stock is listed upon the Chicago Stock Exchange and New York" }, { "docid": "20358640", "title": "", "text": "ROGERS, Circuit Judge (after stating the facts as above). There are certain terms and words which cannot be monopolized as trademarks. The general and well-established rule is that a geographical word, used to designate a locality, a section of a country, or a country, cannot be monopolized as a trade-mark at common law. The name “Winchester” is a geographical one, there being a place of that name in each of 19 states. Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365; Saxlehner v. Eisner, etc., Co., 179 U. S. 19, 21 Sup. Ct. 7, 45 L. Ed. 60; Castner v. Coffman, 178 U. S. 168, 20 Sup. Ct. 842, 44 L. Ed. 1021; Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144; Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581. In the Columbia Mill Co. Case, supra, certain general principles of law applicable to trade-marks and the conditions under which a party may establish an exclusive right to the use of a name for such a purpose are laid down. The last of the rules there stated is the following: “(4) Such trade-mark cannot consist of words in common use as designating locality, section, or region of country.” This court, in Scandinavia Belting Co. v. Asbestos & Rubber Works, 257 Fed. 937, 169 C. C. A. 87, examined at some length the right to use a geographical name as a trade-mark. It was then pointed out that the Circuit Courts of Appeals in the Fourth, Sixth, Seventh, and Eighth Circuits had held that no one can acquire an exclusive right to the use of a geographical name as a trade-mark. In the Scandinavia Case we reached the same conclusion, while recognizing the undoubted fact that the general rule was subject to certain exceptions. But the facts of the instant case do not bring it within any of the limited recog nized exceptions, and they do not need to be now considered. And in Siegert v. Gandolfi, 149" }, { "docid": "22902730", "title": "", "text": "applied. They point only at the place of production, not to the producer, and could they be appropriated exclusively, the appropriation would result in mischievous monopolies.” 13 Wall. 324, 20 L. Ed. 581. In Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144 (1893), the complainant, a manufacturer of flour at Minneapolis, sought to restrain the defendants from using the word “Columbia” in a brand placed on flour sold by them. The court below had dismissed the bill. The Supreme Court in an opinion in which it stated that the general principles of law applicable to trade-marks, and the conditions under which a party may establish an exclusive right to the use of a name or symbol were well settled by its decisions, then went on to say that these decisions establish the following general propositions : “ * * * (4) Such trade-mark cannot consist of words in common use as designating locality, section, or region qi countx-y.” In Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365 (1901), the Supreme Court had before it the question whether the plaintiff had a trade-mark in the geographical name “Elgin” which it had registered under the act of Congress of 1892. The court held: •‘That the general rule applied, and that this geographical name could not be employed as a trade-mark and its exclusive use vested in appellant, and that it was not properly entitled to be registered as such.” In French Republic v. Saratoga Vichy Co., 191 U. S. 427, 24 Sup. Ct. 145, 48 L. Ed. 247 (1903), the plaintiff claimed a trade-mark in the geographical name “Vichy,” which was the name of a commune of France whose springs for several hundred years had been famous for their medicinal qualities. The trial court had dismissed the bill upon the ground that the plaintiff had no exclusive right to the use of the word “Vichy” and that defendant had never been guilty of an attempt to palm off its waters" }, { "docid": "22466470", "title": "", "text": "ample to warrant tbe court in enjoining its destruction by the fraud. The contention of counsel for the appellants here is a confusion of the bases of two classes of suits, — those for infringements of trade-marks, and those for unfair competition in trade. Suits of the former class rest on the ownership of the trademarks. Suits of the latter class are founded upon the damage to the trade of the complainants by the fraudulent passing of the goods of one manufacturer for those of another. In the former, title to the trade-marks is indispensable to a good cause of action; in the latter, no proprietary interest in the words, names, or means by which the fraud is perpetrated is requisite to maintain a suit to enjoin it. It is sufficient that the complainant is entitled to the custom — the good will — of a business, and that this good will is injured, or is about to be injured, by the palming off of the goods of another as his. Lee v. Haley, 5 Ch. App. 155, 161; Flour-Mills Co. v. Eagle, 86 Fed. 608, 628, 30 C. C. A. 386, 406, 41 L. R. A. 162; Coats v. Thread Co., 149 U. S. 562, 13 Sup. Ct. 966, 37 L. Ed. 847; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118. This is not a suit for the infringement of a trade-mark. It is a suit for unfair competition, for selling goods of the appellee as those of another. For this reason no proprietary interest in the word “American” or in the names whose use is enjoined was essential to the issue of the injunction. For the same reason this case is not governed nor affected by the principle that geographical terms and words descriptive of the character, quality, or place of manufacture of an article.are not capable of monopolization as trade-marks. Canal Co. v. Clark, 13 Wall. 311, 321, 20 L. Ed. 581; Mill Co. v. Alcorn, 150 U. S. 460, 464, 14 Sup. Ct. 151, 37" }, { "docid": "11975489", "title": "", "text": "which, he alleged, were there presented, and which created an estoppel against the opposer. In view of its importance, we deem it appropriate to quote a considerable portion of the decision in the Touraine Co. Case, supra: “Considering all these facts, we are satisfied that the opposer never used, or thought of using, the word as a trade-mark until Miner appeared upon the field, and that was many years after the applicant had adopted and applied it to its entire output. It was used by the opposer to indicate the character of the chocolate, not the origin of it. The distinction between a technical trade-mark and a device to denote style or quality is pointed out in Lawrence Mfg. Co. v. Tennessee Mfg. Co., 138 U. S. 537, 546, 11 S. Ct. 396, 34 L. Ed. 997; and Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 S. Ct. 151, 37 L. Ed. 1144. The mere use of a word as a trade-mark does not prove likelihood of damage to one who uses the mark in another capacity, for instance, as a grade indicator.' Since op-poser has no other proof of probable damage its opposition should have been dismissed. “The Patent Office in upholding the opposition appeared to rely on our decision in Atlas Underwear Co. v. B. V. D. Co., 48 App. D. C. 425, but we do not think it supports the conclusion reached. Of course, a trade-mark use of a mark is not necessary in a proceeding of this kind. If the op-poser can show in any way that' he would probably be damaged by its registration to the applicant he may do so. The' trademark statute (section 6, 33 Stat. 726 [Comp. St. § 9491, 15 USCA § 86]) is our chart. There is nothing in it which says that a person must own a trade-mark, registered or not, before he can oppose the registration of the mark to another person. All that the statute requires of him, according to our interpretation, is to prove facts which, if true, would tend to show that he" }, { "docid": "15605002", "title": "", "text": "originator, or manufacturer of the articles, is injured whenever another adopts the same name or device for similar articles, because such adoption is, in effect, representing falsely that the productions of the latter are fhose of the former. The trade-mark must therefore be distinctive in its original signification, pointing to the origin of the article, or it must have become such by association. No one can claim protection for tire exclusive use of a trade-mark or trade-name which would practically give him a monopoly in the sale of any goods other than those produced or made by himself. As its office is to point out distinctively the origin or ownership of the articles to which it is affixed, no sign or form of words can be ap propriated as a valid trade-mark, which from the fact conveyed by its primary meaning, others may employ with equal truth, and with equal right for the same purpose. These principles are announced in the following cases decided by the Supreme Court of the United States, from whose opinions the foregoing statements are substantially quoted. Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581; Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 Sup. Ct. 151, 37 L. Ed. 1144; Elgin Watch Co. v. Illinois Watch Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365. It is upon -these cases that appellees rely chiefly to support their position in the point now under discussion. Many other decisions in various jurisdictions are to the same effect, but the complete doctrine will be found comprehensively and elaborately announced in the three cases cited. In Canal Company v. Clark the word “Lackawanna,” as applied to coal, was claimed to be the peculiar property and trade-mark of the complainants. The court found that this word was not devised by the complainants; that they found it a settled and known appellative of the district in which their coal deposits and those of others were situated ; that at the time when they began to use it, it was a recognized description of" }, { "docid": "1011486", "title": "", "text": "[Comp. St. § 9485 et seq.]), that one is not entitled to the exclusive use of a trade-mark consisting merely of words which are descriptive of the qualities or characteristics of an article of trade. Columbia Mill Co. v. Alcorn, 14 S. Ct. 151,150 U. S. 460, 37 L. Ed. 1144; United Drug Co. v. Rectanus, 39 S. Ct. 48, 248 U. S. 90, 63 L. Ed. 141; Warner & Co. v. Lilly & Co., 44 S. Ct. 615, 265 U. S. 526, 68 L. Ed. 1161; Searle & Hereth Co. v. Warner, 112 F. 674, 50 C. C. A. 321. Under section 5 of the just-mentioned act (Comp. St. § 9490), the fact that a word, when it was first used to designate an article, was descriptive of it, or indicative of its character or qualities, does not prevent the registration of that word as a trade-mark, if, in foreign or interstate commerce, it was in actual and exclusive use as a trade-mark of the applicant or his predecessors in title for 10 years next preceding February 20, 1905. That provision evidences the intention of Congress to recognize such exclusive use for the period mentioned as a sufficient assurance that the word had acquired a secondary meaning as the designation of the origin or ownership of the goods to which it was affixed. Thaddeus Davids Co. v. Davids, 34 S. Ct. 648, 233 U. S. 461, 470, 58 L. Ed. 1046, Ann. Cas. 1915B, 322. Appellant did not have exclusive use in interstate or foreign commerce of the name “Post-Dispatch” for a newspaper for 10 years next preceding February 20, 1905, nor at any time subsequent to that date and prior to the bringing of this suit. A prior exclusive use for the period mentioned was a prerequisite to an effective registration as a trade-mark of a name or word which by itself at the time of its adoption described or meant a newspaper without indicating whose newspaper it was. The claim to relief on the ground of trade-mark infringement was not sustainable, because appellant failed to prove a" }, { "docid": "15645848", "title": "", "text": "brand or grade mark on tubes of inferior quality, known as Grade B or ‘seconds’ and then only when such tubes are plainly so marked and advertised.” A trade-mark is created chiefly by use which must be general, continuous, and exclusive and applied to goods and used in trade under such circumstances of publicity and length of use as to ^how an intention to adopt the mark for specific goods and to have become known as the distinguishing mark for such goods. In re Trade-Mark Cases,. 100 U. S. 82, 25 L. Ed. 550; Bennett & Sons v. Farmers’ Seed & Gin Co. (C. C. A.) 288 F. 365; Coty, Inc., v. LeBlume Import Co., Inc. (D. C.) 292 F. 264; Nims, The Law of Unfair Competition and Trademark, § 186; 38 Cyc. 692, note 67. Applying this rule, the special master found that appellee had a valid, existing trade-mark and that appellants have not. It is inseparable from the good will and cannot exist in gross. United Drug v. Rectanus, 248 U. S. 90, 39 S. Ct. 48, 63 L. Ed. 141. The special master correctly found that where a party uses its company name and address with a mark which primarily distinguishes the grade or quality of the article, then said mark cannot be a technical trademark and is known as a grade-mark. Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 S. Ct. 151, 37 L. Ed. 1144; Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51, 25 L. Ed. 993. It was clearly the purpose of the special master in his findings and holdings to give appellants the full benefit of every right belonging to them by reason of the marking of the B grade of radio tubes as “National.” However, the mere use of the word “National” as a grade-mark by appellants did not prevent appellee from securing trade-mark rights in the same .word for its radio tubes of highest quality; but the rights of appellants in the limited use of the word should be safeguarded in a decree in line with the recommendations" }, { "docid": "15645849", "title": "", "text": "39 S. Ct. 48, 63 L. Ed. 141. The special master correctly found that where a party uses its company name and address with a mark which primarily distinguishes the grade or quality of the article, then said mark cannot be a technical trademark and is known as a grade-mark. Columbia Mill Co. v. Alcorn, 150 U. S. 460, 14 S. Ct. 151, 37 L. Ed. 1144; Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51, 25 L. Ed. 993. It was clearly the purpose of the special master in his findings and holdings to give appellants the full benefit of every right belonging to them by reason of the marking of the B grade of radio tubes as “National.” However, the mere use of the word “National” as a grade-mark by appellants did not prevent appellee from securing trade-mark rights in the same .word for its radio tubes of highest quality; but the rights of appellants in the limited use of the word should be safeguarded in a decree in line with the recommendations of the special master. The findings of the special master in the premises axe well sustained by the evidence; the District Court properly overruled the exceptions to his report and should have entered a decree in harmony with that report. The evidence having been heard by the. special master and he having seen the. wit nesses and examined all of the exhibits admitted in evidence, and the court having affirmed the findings of the special master, this court is not at liberty to disregard it, and can go no farther than to see that a decree in harmony with the findings and holdings thus approved is entered. Citizens’ Nat. Bank v. Donnell, 195 U. S. 369, 25 S. Ct. 49, 49 L. Ed. 238; Curtice Bros. v. Barnard (C. C. A.) 209 F. 589; Gay Mfg. Co. v. Camp (C. C. A.) 65 F. 794; General Finance Corp. v. Keystone Credit Corp. (C. C. A.) 50 F.(2d) 872. Under the findings of fact of the special master appellants are not entitled to an injunction as" }, { "docid": "13588477", "title": "", "text": "of merchants had for years used as a trade-mark the words “La Favorita” to designate flour selected by them, in the exercise of their best judgment, as equal to a certain standard, the Supreme Court held that the addition by an infringer of his name, in place of the owner’s, to the trade-mark did not render such unauthorized use any less an infringement but on the contrary “is an aggravation, and not a justification, for it is openly trading in the name of another upon the reputation acquired by the device of the true proprietor.” See, also, Thomas G. Plant Co. v. May Company, 6 Cir., 105 F. 375, 378, supra, and Leonard et al. v. White’s Golden Lubricator Co., C.C., 38 F. 922. (2) In our opinion, the District Judge erred in approving the Master’s holding that appellee has used the word “Champs,” not as a brand name for its cigars but “rather to designate one style or grade in the Portina line of cigars.” It is true that the owner of a trade-mark on a name cannot prohibit others from using that name as a grade mark to distinguish the quality of an article. Continental Corporation v. National Union Radio Corporation, 7 Cir., 67 F.2d 938; Columbia Mill Company v. Alcorn, 150 U. S. 460, 14 S.Ct. 151, 37 L.Ed. 1144. But, as we read the record in this case, there is no justification for the inference drawn by the Master and approved by the District Judge that the manner of usage by appellee of “Champs” classifies the word as a grade mark and not a trade-mark. Applying the principles of the cases which have been discussed, the reverse conclusion seems obvious. See, especially, Thomas G. Plant Co. v. May Co., supra, and cases there cited. See, also, Chesebrough Manufacturing Co. v. Old Gold Chemical Co., Inc., 6 Cir., 70 F.2d 383; and Ammon & Person v. Narragansett Dairy Co., D.C., 252 F. 276 (affirmed in 1 Cir., 262 F. 880), in which the comment was made at page 278 of the opinion that “neither subtractions from nor" }, { "docid": "8020435", "title": "", "text": "technical trade-mark in the word ‘computing,' its use by others will be restrained, for a wrongful intent in so using it will be presumed. But when the word is incapable of becoming a valid trade-mark, because descriptive or geographical, yet has by use come to stand for a particular maker or vendor, its use by another in this secondary sense will be restrained as unfair and fraudulent competition, and its use in its primary or common sense confined in such a way as will prevent a' probable deceit by enabling one maker or vendor to sell his article as the product of another.” The doctrine is well supported by the case of Elgin Watch Co. v. Illinois Watch Co., 179 U. S. 665, 21 Sup. Ct. 270, 45 L. Ed. 365. In the case of Columbia Mill Co. v. Alcorn, 150 U. S. 461, 463, 14 Sup. Ct. 151, 152, 37 L. Ed. 1144, it is said “that if the device, mark, or symbol was adopted or placed upon the article for the purpose of identifying its class, grade, style, or quality, or for any purpose other than a reference to or indication of its ownership, it cannot be sustained as a valid trade-mark.” In Lawrence Mfg. Co. v. Tennessee M. Co., 138 U. S. 537, 547, 11 Sup. Ct. 396, 400, 34 L. Ed. 997, the court said: “Nothing is better settled than that an exclusive right to the use of word\" letters, or symbols to indicate merely the quality of the goods to which they are affixed cannot be acquired. And while if the primary object of the mam be to indicate origin or ownership, the mere fact that the article has obtained such a wide sale that it has also become indicative of quality is not of itself sufficient to debar the owner from protection, and make it the common property of the trade; yet if the device or symbol was not adopted for the purpose of indicating origin, manufacture, or ownership, but was placed upon the article to denote class, grade, style, or quality, it cannot" }, { "docid": "1011485", "title": "", "text": "the dealer asked which paper was wanted. No evidence adduced tended to prove that any one bought appellee’s paper when he intended to get appellant’s. The circulation of the week-day issues of the St. Louis Post-Dispatch in any territory reached by the Houston PostiDispateh is negligible. When the appellant adopted for its newspaper the name “Post-Dispatch,” and before and since that time, that name indi (iated a newspaper which was the result of the combination or consolidation of two previously existing newspapers, one called the “Post” and the other the “Dispatch,” but did not by itself indicate what newspapers called, respectively, the “Post” and the “Dispatch,” were consolidated, or the ownership of the paper resulting from the consolidation. The name was and is so far descriptive that its adoption is to be regarded as having been for a purpose other than a reference to or indication of the origin or ownership of the newspaper to which it was given. It was settled long prior to the Trade-Mark Act of February 20, 1905 (33 Stat. 728 [Comp. St. § 9485 et seq.]), that one is not entitled to the exclusive use of a trade-mark consisting merely of words which are descriptive of the qualities or characteristics of an article of trade. Columbia Mill Co. v. Alcorn, 14 S. Ct. 151,150 U. S. 460, 37 L. Ed. 1144; United Drug Co. v. Rectanus, 39 S. Ct. 48, 248 U. S. 90, 63 L. Ed. 141; Warner & Co. v. Lilly & Co., 44 S. Ct. 615, 265 U. S. 526, 68 L. Ed. 1161; Searle & Hereth Co. v. Warner, 112 F. 674, 50 C. C. A. 321. Under section 5 of the just-mentioned act (Comp. St. § 9490), the fact that a word, when it was first used to designate an article, was descriptive of it, or indicative of its character or qualities, does not prevent the registration of that word as a trade-mark, if, in foreign or interstate commerce, it was in actual and exclusive use as a trade-mark of the applicant or his predecessors in title for 10 years" }, { "docid": "21816236", "title": "", "text": "since a trademark confers on its owner no right in gross or at large, like a statutory copyright or a patent for an invention, United Drug Co. v. Rectanus Co., 248 H. S. 90, 97, 39 S. Ct. 48, 63 L. Ed. 141, and since its sole office is to indicate that the goods of the same general class to .which it is attached emanate from a single source or reach the consumer through the same channels of trade, Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-413, 36 S. Ct. 357, 60 L. Ed. 713, the proprietor of a trade-mark is without right to forbid or exclude the use of the same mark, words, or symbol by another upon goods of a class and quality so different from those of the original user as to preclude the probability that purchasers will be misled into believing that the different articles spring from a common source, Schechteris Historical Foundations of Trade-Mark Law, pp. 146-150; Nims on Unfair Competition and Trade-Marks, § 221; Hanover Milling Co. v. Metcalf, 240 U. S. 403, 412-413, 36 S. Ct. 357, 60 L. Ed. 713; for in the absence of such confusion in the minds of purchasers the use of the mark by another brings about no interference with the trade-mark owner’s right of “reasonable expectation of future patronage,” E. S. Rogers, Good Will, Trade-Marks, and Unfair Trading, p¡ 13. But goods are of the same general class when either their general and essential characteristics are the same, Phœnix Paint, etc., Co. v. Lewis, 32 App. D. C. 285, or when, for any other reason, they are so related or associated, either in fact or in the mind of the public, that a common trademark would probably lead purchasers to conclude that the several articles have a common origin, Duro Co. v. Duro Co., 27 F.(2d) 339 (C. C. A. 3); Akron-Overland Tire Co. v. Willys-Qverland Co., 273 F. 674 (C. C. A. 3); Aunt Jemima Mills Co. v. Rigney & Co., 247 F. 407 (C. C. A. 2); Eastman Co. v. Kodak Cycle Co.," }, { "docid": "15645832", "title": "", "text": "FITZHENRY, Circuit Judge. This is an appeal from a decree in favor of appellee in an action commenced by it for trade-mark infringement, and for unfair competition. It confirms the report of the special master enjoining appellants Jackson and Continental Corporation from using the trade-name “National Tube Mfg. Co.” and from using the word “National” as a trademark on radio tubes. It also dismissed the cross-complaint of appellants. The bill for trade-mark infringement and for unfair competition was filed August 27, 1931. Appellants answered and filed their cross-complaint. When issues were joined the cause was referred to a special master to take evidence and make findings' and recommendations. After hearings the special master prepared his report. Upon exceptions to the master’s report and after further argument, the special master made Some few changes in his findings and conclusions of law. The final report was filed; appellants filed their exceptions to it, and upon a hearing by the court the findings and holdings of the special' master were adopted and appellants’ exceptions overruled. A final decree was entered. The special master’s findings of fact were very minute and carefully made. The gist of the findings is that appellants bought radio tubes ii> the open market wherever they got the best prices, graded them themselves’ as firsts and seconds; the highest types were graded “A,” or, “Firsts”; the second grade was “B”; and the poorer qualities given other grades; that “National” was the grade-mark used by appellants on second grade, “B,” tubes. In other words, that with appellants the word “National” was a grade-mark and not a trade-mark; that their advertising and methods of doing business were unfair and appellants were guilty of unfair competition, as charged in appellee’s bill of complaint. Respecting the trade-mark infringement, appellants admit that the radio tubes manufactured by appellee are sold under the trademark of “National Union” with “National” marked in prominent type or design and “Union” in minor type or design, and its tubes are generally known among jobbers, distributors, set manufacturers, and radio set users as “National” tubes. That the trademark is affixed to" } ]

[ { "docid": "22705488", "title": "", "text": "shares of the debt-or’s property. See, e. g., 11 U. S. C. § 726(b) (1982 ed.); H. R. Rep. No. 95-595, supra, at 177-178. Section 547(b) furthers this policy by permitting a trustee in bankruptcy to avoid certain preferential payments made before the debtor files for bankruptcy. This mechanism prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy. Of course, if the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding, the policy behind the avoidance power is not implicated. The reach of § 547(b)’s avoidance power is therefore limited to transfers of “property of the debtor.” The Bankruptcy Code does not define “property of the debtor.” Because the purpose of the avoidance provision is to preserve the property includable within the bankruptcy estate—the property available for distribution to creditors — “property of the debtor” subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. For guidance, then, we must turn to § 541, which delineates the scope of “property of the estate” and serves as the postpetition analog to § 547(b)’s “property of the debtor.” Section 541(a)(1) provides that the “property of the estate” includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Section 541(d) provides: “Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest . . . becomes property of the estate under subsection (a) of this section only to the extent of the debtor’s legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold.” Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not “property of the estate.” Nor is such an equitable interest “property of the debtor” for purposes of § 547(b). As" } ]

[ { "docid": "7656540", "title": "", "text": "filing of the bankruptcy petition.” Christy v. Alexander & Alexander of New York, Inc. (In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey), 130 F.3d 52, 55 (2d Cir.1997). Section 547(b) of the Bankruptcy Code sets forth the elements that a trustee must establish in order to avoid as preferential the prepetition transfer of “any interest of the debtor in property.” Section 547(c) then sets forth sev- eral express defenses. As noted above, two are invoked by USRS: an otherwise preferential transfer may not be avoided to the extent it constitutes (i) a contemporaneous exchange of new value to the debtor or (ii) a payment in the ordinary course of business. 11 U.S.C. § 547(c)(1) and (2). In addition to the defenses specified in § 547(c), courts have implied several other defenses, one of which, the conduit defense, arises out of the relationship between § 547 and § 550 of the Bankruptcy Code and is raised by USRS. Section 550 allows the trustee to recover the transferred property or its value to the extent the trustee has successfully invoked the avoidance powers of § 547. Section 550(a)(1) provides that either an “initial transferee” or “the entity for whose benefit such transfer was made” is liable for an avoided transfer. 11 U.S.C. § 550(a)(1); see In re Moskowitz, 85 B.R. 8, 10 (E.D.N.Y.1988). By contrast, a “mediate” or “immediate” transferee (a subsequent transferee) has an additional defense that is not ordinarily available to the initial transferee. Under § 550(b)(1), a trustee may not recover an otherwise avoidable transfer from a subsequent transferee “that takes for value, including satisfaction or securing a present antecedent debt in good faith, and without knowledge of the voidability of the transfer avoided.” See Bonded Fin. Serv. v. European Am. Bank, 838 F.2d 890, 896-97 (7th Cir.1988); Tese-Milner v. Brune (In re Red Dot Scenic, Inc.), 293 B.R. 116, 118 (S.D.N.Y.2003), aff'd, 351 F.3d 57 (2d Cir.2003); Sec. Investor Protection Corp. v. Stratton Oakmont, 234 B.R. 293, 312 (Bankr.S.D.N.Y.1999). Whether a “transferee” under § 550 is an initial or subsequent transferee therefore has significant consequences" }, { "docid": "6347523", "title": "", "text": "paid by the initial transferee lacks reasonably equivalent value. See In re Carlson, 263 F.3d 748, 750 (7th Cir.2001). The Trustee bears the burden of proof as to this issue, and as to the other elements of § 548. FBN Food Servs., 175 B.R. at 682. When a transfer is avoided, the next step is to look to 11 U.S.C. § 550(a), which provides that a trustee may recover “the property transferred, or, if the court so orders, the value of such property....” 11 U.S.C. § 550(a)(1); see also FBN Food Servs., 82 F.3d at 1396. Once the whole transfer is pulled into the estate, the money is then distributed according to the priorities under the Bankruptcy Code and the debtor’s own commitments. Id. Although the general rule is that transferees must either return the property or pay its value, there are exceptions under § 548(c) and § 550(b). Cohen, 199 B.R. at 719. Where, as here, recovery is sought from the initial transferee of property, only the defense under § 548(c) is potentially available. See Thompson v. Janovich (In re Food & Fibre Protection, Ltd.), 168 B.R. 408, 419-20 (Bankr.D.Ariz.1994) (defense under § 550(b) is unavailable to “initial transferee”); Bucki v. Singleton (In re Cardon Realty Corp.), 146 B.R. 72, 79 n. 11 (Bankr.W.D.N.Y.1992) (same). Section 548(c) can be used to shelter payments from the Trustee’s avoiding power and provides: (c) Except to the extent that a transfer or obligation voidable under this section is voidable under section 544, 545, or 547 of this title, a transferee or obligee of such a transfer or obligation that takes for value and in good faith has a lien on or may retain any interest transferred or may enforce any obligation incurred, as the case may be, to the extent that such transferee or obligee gave value to the debtor in exchange for such transfer or obligation. 11 U.S.C. § 548(c). There are two prongs to the defense under § 548(c)- — value and good faith. This section has been construed as an affirmative defense, all elements of which must be proven" }, { "docid": "18514506", "title": "", "text": "purposes of § 547(b).” Begier, 496 U.S. at 59, 110 S.Ct. at 2263. The primary consideration in determining if funds are property of the debtor’s estate is whether the payment of those funds diminished the resources from which the debtor’s creditors could have sought payment. Conversely, if funds cannot be used to pay the debtor’s creditors, then they generally are not deemed an asset of the debtor’s estate for preference purposes. A common example is when a debtor holds funds in trust for another. In re Southmark, 49 F.3d 1111, 1117 (5th Cir.1995). Based on the facts of the transaction and the Agreement, both the district court and the bankruptcy court determined that because Chase neither owned nor attempted to transfer the mortgages themselves, neither Chase nor Maple ever held the equitable ownership of the funds transferred from Chase to Maple. Therefore, the transfer of the $4.5 million to Chase did not diminish Maple’s estate, and was not avoidable as either a preferential or a fraudulent transfer. The Burden of Proof The Trustee' argues that In re South-mark establishes a presumption that the Debtor’s possession of funds in a bank account in its name, coupled with the unfettered discretion to pay creditors of its own choosing, demonstrates a sufficient “interest of the debtor in property” for purposes of preference law. See In re Southmark, 49 F.3d 1111, 1116 (5th Cir.1995). Furthermore, the Trustee argues that, once it established that Maple had legal title to the funds, Chase had the burden of establishing that it did not have equitable title to the funds that had been deposited in its Fidelity account, and that the funds constituted a “trust.” The Trustee insists that Chase failed to meet this burden. The District Court and the bankruptcy court properly placed the burden of proof on the Trustee because 11 U.S.C. § 547(g) specifically provides that “the trustee has the burden of proving the avoidability of a [preferential] transfer.” Similarly, the trustee has the burden of proving the elements of a fraudulent transfer. See In re McConnell, 934 F.2d 662, 665 n. 1 (5th Cir.1991)." }, { "docid": "17576310", "title": "", "text": "an equitable distribution of the debtor’s assets. See 11 U.S.C. § 726 (1982). These characteristics of bankruptcy — the exclusive jurisdiction of the Bankruptcy Court, the stay of any creditors’ piecemeal actions to collect the property of the debtor's estate, and the detailed order for distribution of the debtor's assets-protect equal treatment for all creditors and avoid the incoherent dismemberment of the debtor which would occur under a \"first-come-first-served” scheme. See H.R.Rep. No. 595, 95th Cong., 2d Sess. 178, reprinted in, 1978 U.S.Code Cong. & Admin. News 5787, 5963, 6138. In a further effort to consolidate all the debtor’s assets and distribute them equally between creditors, the Bankruptcy Code contains provisions empowering the court or the trustee in bankruptcy to recover property belatedly, unlawfully, or fraudulently transferred by the debtor in an effort to place it outside the reach of creditors. N.L.R.B. v. Martin Arsham Sewing Co., 873 F.2d 884, 887 (6th Cir.1989). . Hunt. Supp. Br., DN423 atl. . Huntington argues that Section 550(a)'s own limitation on the magnitude of avoidance (\"... to the extent that a transfer is avoided. ...”) lends support to its contention that Trustee should only to able to recover under Section 544(b) what would be permitted under Mich. Comp. Laws § 566.37(1). That argument might warrant further consideration were Section 550(a) to address transfers avoided under Section 544(b) alone. However, Section 550(a) covers many other types of avoidable transfers and it is because of these other transfers that Section 550(a) permits a recovery only \"to the extent that a transfer is avoided....” For example, while a payment on account of an antecedent debt may generally be avoidable as a preference under Section 547(b), it is in fact not avoidable \"to the extent” contemporaneous value is exchanged under Section 547(c)(1), \"to the extent” the transfer is in the ordinary course under Section 547(c)(2), or \"to the extent” new value is given under Section 547(c)(4). See also 11 U.S.C. §§ 548(c) and 553(b). .Huntington cites Dakar v. Jackson (In re Jackson), 318 B.R. 5 (Bankr.D.N.H.2004) for the proposition that state avoidance laws provide for equitable adjustments" }, { "docid": "72356", "title": "", "text": "§ 547(b) and recover the transfer or value thereof under § 550 of the Bankruptcy Code. See 5 Collier on Bankruptcy ¶ 550.02 at n. 1 (Alan N. Resnick & Henry J. Sommer, eds., 15th ed., rev. 2005) (“In most cases, actions to avoid transfers under a particular avoiding power will be brought in tandem with an action to recover the property transferred or its value under section 550.”). And the Court must evaluate the two forms of relief requested by the Liquidation Trust — avoidance and recovery — separately. Because the Liquidation Trust is seeking to avoid a transfer made directly to Green & Green (the $100,000 First Payment made jointly payable both to Bricker and the law firm), the Court rejects Green & Green’s contention that a necessary prerequisite to the commencement of this adversary proceeding was avoidance of the Transfer to Bricker. E. The Transfer is avoidable under 11 U.S.C. § 547(b). The Liquidation Trust has the burden of establishing that the Transfer is avoidable as a preference. See 11 U.S.C. § 547(g). The burden then shifts to Green & Green to demonstrate the applicability of a § 547(c) defense to avoidability of the Transfer. See id. Here, the Liquidation Trust has established all the elements necessary to avoid the Transfer under § 547(b) of the Bankruptcy Code. There is no dispute that the First Payment was the transfer of an interest of the Debtor in property. See 11 U.S.C. § 547(b). The check evidencing the Transfer was drawn on a Spinnaker Coating account with Key Bank of Maine in the amount $100,000 and, thus, was unquestionably property of the Debtor’s estate. See 11 U.S.C. § 541(a)(1) (defining property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case”). Next, the Transfer was made “to or for the benefit of a creditor[.]” 11 U.S.C. § 547(b)(1). Green & Green was not a creditor of Spinnaker Coating. Bricker was a creditor, however, by virtue of Spinnaker Coating’s settlement obligations to him. While the First Payment was in" }, { "docid": "7656539", "title": "", "text": "462 (Bankr.W.D.N.Y.1994). In each of these cases, the Court found that the defendant (the U.S. Department of Labor in one ease and Blue Cross as administrator of the debtor’s health plan in the other) acted as agent for the debtor’s employees, receiving and disbursing funds payable to the employees as a “custodian” and “administrator,” Dairy Stores, 148 B.R. at 9, or “remitting agent,” American Envt’l Servs., 164 B.R. at 464. In the instant case, as further discussed below, USRS had a claim of its own as evidenced by its own invoices to the Debtors, and it has introduced no evidence that it acted as an agent of the employees. The Payments made to it were to or for the benefit of a creditor under § 547(b)(1). See Hunter v. S.K. Austin Co. (In re Beck), 25 B.R. 947, 952 (Bankr.N.D.Ohio 1982). I. Conduit Defense “The trustee of a bankrupt estate has broad powers under the Bankruptcy Code to avoid certain transfers of property or assets made by the debtor either after or shortly before the filing of the bankruptcy petition.” Christy v. Alexander & Alexander of New York, Inc. (In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey), 130 F.3d 52, 55 (2d Cir.1997). Section 547(b) of the Bankruptcy Code sets forth the elements that a trustee must establish in order to avoid as preferential the prepetition transfer of “any interest of the debtor in property.” Section 547(c) then sets forth sev- eral express defenses. As noted above, two are invoked by USRS: an otherwise preferential transfer may not be avoided to the extent it constitutes (i) a contemporaneous exchange of new value to the debtor or (ii) a payment in the ordinary course of business. 11 U.S.C. § 547(c)(1) and (2). In addition to the defenses specified in § 547(c), courts have implied several other defenses, one of which, the conduit defense, arises out of the relationship between § 547 and § 550 of the Bankruptcy Code and is raised by USRS. Section 550 allows the trustee to recover the transferred property or its value to the" }, { "docid": "17569423", "title": "", "text": "not dispute that the trustee has met his burden and proved the five elements listed. The sole issue contested by the parties is the “threshold requirement” in the statute: whether the payments made to Egidi’s MBNA credit card account from her other credit card accounts constitute “transfer[s] of an interest of the debtor in property.” 11 U.S.C. § 547(b); Parks v. FIA Card Services, N.A (In re Marshall), 550 F.3d 1251, 1254 (10th Cir.2008). Section 547(b)’s avoidance power is limited to transfers of “property of the debtor,” which the Supreme Court has defined as “that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings.” Begier, 496 U.S. at 58, 110 S.Ct. at 2263. “[Property that would not have been available for distribution to his creditors in a bankruptcy proceeding” is not “property of the debtor” under § 547(b). Id. The 1984 amendments to the Bankruptcy Code changed the term “property of the debtor” to “an interest of the debtor in property,” but the Supreme Court stated that, because this alteration was a “clarifying change,” the older language and the newer language are “coextensive.” Id. at 59 n. 3, 110 S.Ct. at 2263 n. 3. In Nordberg v. Sanchez (In re Chase & Sanborn Corp.), 813 F.2d 1177, 1181 (11th Cir.1987), which involved fraudulent transfers, we discussed “[t]he rules established in the avoidable preference cases” and explained that “any funds under the control of the debtor, regardless of the source, are properly deemed to be the debtor’s property, and any transfers that diminish that property are subject to avoidance.” See Andreini & Co. v. Pony Express Delivery Services, Inc. (In re Pony Express Delivery Servs., Inc.), 440 F.3d 1296, 1300 (11th Cir.2006) (holding that a transferee is an “initial transferee” under the Bankruptcy Code “if they exercise legal control over the assets received”); Walker v. Wilkinson, 296 F. 850, 852 (5th Cir.1924) (under the previous bankruptcy statute, “[t]he transfer or payment must be one that diminishes the fund to which creditors of the same class can legally resort for the" }, { "docid": "18505899", "title": "", "text": "the Bankruptcy Code. 11 U.S.C. § 364. As an incentive to creditors, § 364 allows that any funds advanced postpetition to a debtor shall be secured by unencumbered assets or given priority as administrative claims under § 507(a)(1). 11 U.S.C. § 364 and 11 U.S.C. § 507(a)(1). In the present case, the Debtors were unable to operate without obtaining additional financing. As a result, the Debtors entered into the Agreed Order with the Banks. The Agreed Order allowed the Debtors to use cash collateral and other assets which were subject to the Banks’ liens. In order to obtain the additional financing, the Debtors granted the Banks liens in “all property of the estate and all proceeds thereof.” Since the Debtors granted the Banks valid liens in all property of the estate, the only question is whether the preference proceeds are property of the estate. In Merrill v. Abbott (In re Independent Clearing House Co.), 41 B.R. 985 (Bankr.D.Utah 1984), rev’d on other grounds, 14 Collier Bankr.Cas.2d (MB) 1261 (D.Utah 1986), the court discussed two ways by which property recovered by the trustee would be included in the debtor’s estate. The court stated: Section 541(a)(3) of the Bankruptcy Code provides that the debtor’s estate includes any interest in property recovered by the trustee under Section 550. Section 550 permits the trustee to recover for the benefit of the estate property or value thereof from the transferee of an avoided transfer. Section 541(a)(4) provides that the debtor’s estate includes any interest in property preserved for the benefit of or ordered transferred to the estate pursuant to Section 551. The latter section provides that any transfer avoided under Section 544, 547 or 548 is preserved for the benefit of the estate. Id at 998. Property of the estate includes preferences recovered by the trustee. Independent Clearing House, at 998; Ludwig v. Paradeis (In re Drake), 28 B.R. 582, 583 (Bankr.E.D.Wis.1983). For the reasons set out above, I find the preference proceeds are property of the estate. To the extent the Banks advanced postpetition funds, I find the Banks have a valid postpetition security" }, { "docid": "14884228", "title": "", "text": "(the right of the trustee to recover is dependent upon just one creditor with a cause of action and not dependent at all upon the size of that creditor’s claim against the debtor). Once the grounds for setting aside a transfer have been shown, the Trustee faces the second hurdle of establishing a means of recovery under § 550(a) , the remedies section, which requires the Trustee to identify a specific category of persons from whom recovery of the fraudulent transfer may be had. 11 U.S.C. § 550(a); see Cassirer v. Sterling National Bank & Trust (In re Schick), 223 B.R. 661, 664 (Bankr.S.D.N.Y.1998). However, recovery for the estate under § 550(a) is available only to the extent a transfer has been successfully avoided pursuant to any of the avoidance sections of the Bankruptcy Code, including § 544(b). See Bowers v. Atlanta Motor Speedway Inc. (In re Southeast Hotel Properties Limited Partnership), 99 F.3d 151, 154 (4th Cir.1996); Centennial Textiles, 220 B.R. at 171. A. Identifying the Transferee or Beneficiary under § 550(a) There are three types of entities from whom or which a trustee may recover an avoidable transfer under § 544(b): an initial transferee, an entity for whose benefit the initial transfer was made or a subsequent transferee. See 11 U.S.C. § 550(a); Christy v. Alexander & Alexander (In re Finley, Kumble, Wagner, Heine, Underberg, Manley, Myerson & Casey), 130 F.3d 52, 56 (2d Cir.1997); Southeast Hotel, 99 F.3d at 154. The statute clearly separates “(1) the initial transferee of such transfer or the entity for whose benefit such transfer was made” from “(2) any immediate or mediate transferee of such initial transferee,” otherwise known as the subsequent transferee, see 11 U.S.C. §§ 550(a)(1) & (2); Finley, Kumble, 130 F.3d at 57; Danning v. Miller (In re Bullion Reserve of North America), 922 F.2d 544, 547 (9th Cir.1991); Bonded Financial Services, Inc. v. European American Bank, 838 F.2d 890, 895 (7th Cir.1988), because the liability to the estate of the initial transferee or the entity for whose benefit the initial transfer was made is absolute, see Finley, Kumble," }, { "docid": "19896061", "title": "", "text": "appeal on August 11, 2006. IV. DISCUSSION Pursuant to 11 U.S.C. § 547(b), the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5)that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. Although the Bankruptcy Code does not define “property of the debtor,” the Supreme Court has found that the term is “best understood as that property that would have been part of the estate had it not been transferred [by the debtor] before the commencement of bankruptcy proceedings.” Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 2263, 110 L.Ed.2d 46 (1990). “In defining ‘an interest of the debtor in property’ the Sixth Circuit looks to 11 U.S.C. § 541(a)(1), which provides that the property of the estate includes ‘all legal or equitable interests of the debtor in property as of the commencement of the case.’ ” Spradlin v. Jarvis (In re Tri-City Turf Club, Inc.), 323 F.3d 439, 443 (6th Cir.2003) (citing Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 849 (6th Cir.2002)). In addition, in the absence of controlling federal bankruptcy law, the substantive nature of the debtor’s property interest is defined by state law. Id. (citing In re Cannon, 277 F.3d at 849; Jenkins v. Chase Home Mortgage Corp. (In re Maple Mortgage, Inc.), 81 F.3d 592, 596 (5th Cir.1996)). Moreover, pursuant to 11" }, { "docid": "623357", "title": "", "text": "of the Bankruptcy Code. Clearly, there is a question as to whether a transfer may be avoided if the preference is merely a technical one. See In re Biggers, 249 B.R. 873, 877-79 (Bankr.M.D.Tenn.2000). “Essentially, a voidable preference must have depleted the estate.” In re Ramba, Inc., 437 F.3d 457, 460 (5th Cir.2006) (citing Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc., 837 F.2d 224, 230-31 (5th Cir.1988)). In Ramba, for example, the Fifth Circuit concluded that the transfer of fully encumbered assets did not deplete the estate and could not be avoided as a preference, since the Debtor held bare legal title to those assets. Likewise, when a debtor exchanges one secured debt for another, the estate is not diminished. See Shapiro v. Homecomings Financial Network, Inc. (In re Davis), 319 B.R. 532, 536 (Bankr.E.D.Mich.2005); Gregory v. Community Credit Co. (In re Biggers), 249 B.R. 873, 877-79 (Bankr.M.D.Tenn.2000). The Court concludes that, in this case, the Defendant’s refinance of its original loan in the amount of $122,102.17, and its perfection of its own mortgage for the original loan amount did not result in a diminution of the estate. However, with respect to the additional $25,897.83 loaned to the Debtor for home improvements, the Defendant depleted the assets available for distribution to unsecured creditors by placing a hen upon what was, at that time, unencumbered property to secure the additional loan. The Defendant then failed to avail itself of the safe harbor of § 547(e)(2), which would have sheltered the Defendant from this preference action, by timely perfecting its interest in the Debtor’s homestead property. Thus, to the extent the Defendant’s mortgage secures the $25,897.83 home improvement loan, the Court concludes that, under the circumstances, the Trustee has established each of the elements of a preferential transfer under § 547(b) of the Bankruptcy Code. B. Contemporaneous Exchanges for New Value (11 U.S.C. § 547(c)(1)) The Defendant argues that § 547(c)(1) applies to protect the transfer of a security interest in the Debtor’s home from avoidance. Section 547(c)(1) provides that a trustee may not avoid a preferential transfer “to" }, { "docid": "10237484", "title": "", "text": "district court ruled that the trustee could attack the preference under 11 U.S.C. § 550(a). LSC now appeals the district court’s order. II. A. LSC’s primary argument on appeal is that the district court and the bankruptcy court erred by ruling that the trustee had proved all five elements of a preferential transfer under 11 U.S.C. § 547(b). That subsection allows the trustee to avoid any transfer of property of the debtor: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A)on or within 90 days before the date of the filing of the petition; (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). The trustee may recover any property transferred in violation of section 547(b) from “the initial transferee of such transfer or the entity for whose benefit such transfer was made....” Id. § 550(a)(1). LSC argues that the trustee failed to prove elements (1) and (5) under section 547(b), and that the district court erroneously granted relief under ‘ section 550(a). Initially LSC argues that there has been no preferential transfer because the letter of credit issued by American Bank is not “an interest of the debtor in property,” as required by the first sentence of section 547(b). Waving a banner acclaiming the inviolability of letters of credit, LSC argues that section 547(b) cannot apply in this case. We agree with LSC that neither a letter of credit nor its proceeds are property of the debtor’s estate. See In re AOV Indus., Inc., 64 B.R. 933, 941 (Bankr.D.D.C.1986); In re Clothes, Inc., 35 B.R. 487, 489 (Bankr.D.N.D.1983). As the district court correctly noted, a letter of credit is an undertaking between the issuing bank" }, { "docid": "1144232", "title": "", "text": "a preference. Analyzing the logical conclusion of the Trustee’s reasoning highlights the flaw in his position. The Trustee concludes that a party may only raise those defenses specifically enumerated under section 547(c)(1) through (7). If true, a preference defendant would be precluded from challenging and defending any alleged preferential transfer on grounds such as lack of standing, want of jurisdiction, or improper service of process. Such threshold defenses, however, are potentially available to all preference defendants, notwithstanding the Trustee’s contention that only section 547(c)(1) through (7) defenses exist to the merits of a preference action. The Court rejects the Trustee’s argument and concludes that NCNB’s invocation of the earmarking doctrine is permissible. Next, a discussion of the equitable doctrine and its basis under the statute is appropriate. A preferential transfer occurs only if the debtor has an interest in the property transferred. 11 U.S.C. § 547(b). The term “interest of the debtor in property,” as used in section 547(b), however, is undefined by the Bankruptcy Code. See Begier v. IRS, 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990) (property of the debt- or that is subject to 11 U.S.C. § 647(b) is best understood as property that would have been part of the bankruptcy estate had it not been transferred before the commencement of bankruptcy proceedings); In re Bullion Reserve of North America, 836 F.2d 1214, 1217 (9th Cir.), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988) (“[generally, property belongs to the debtor for the purposes of § 547 if its transfer will deprive the bankruptcy estate of something which could otherwise be used to satisfy the claims of creditors.”); In re Bellanca Aircraft Corp., 850 F.2d 1275 (8th Cir.1988) (because property of the estate under 11 U.S.C. § 541 includes all legal or equitable interests of the debtor in property, property of debtor as used under 11 U.S.C. § 547(b), is equivalent to property of the estate); In re Lewis W. Shurtleff Inc., 778 F.2d 1416, 1419 (9th Cir.1985) (“[t]he term ‘property’ used in section 547 enjoys a similarly broad scope [as section" }, { "docid": "623358", "title": "", "text": "own mortgage for the original loan amount did not result in a diminution of the estate. However, with respect to the additional $25,897.83 loaned to the Debtor for home improvements, the Defendant depleted the assets available for distribution to unsecured creditors by placing a hen upon what was, at that time, unencumbered property to secure the additional loan. The Defendant then failed to avail itself of the safe harbor of § 547(e)(2), which would have sheltered the Defendant from this preference action, by timely perfecting its interest in the Debtor’s homestead property. Thus, to the extent the Defendant’s mortgage secures the $25,897.83 home improvement loan, the Court concludes that, under the circumstances, the Trustee has established each of the elements of a preferential transfer under § 547(b) of the Bankruptcy Code. B. Contemporaneous Exchanges for New Value (11 U.S.C. § 547(c)(1)) The Defendant argues that § 547(c)(1) applies to protect the transfer of a security interest in the Debtor’s home from avoidance. Section 547(c)(1) provides that a trustee may not avoid a preferential transfer “to the extent that such transfer was ... intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and ... in fact a substantially contemporaneous exchange.” 11 U.S.C. § 547(c)(1). The Trustee in this case does not dispute the fact that the Defendant provided the Debtor with new value and does not question that the parties intended the exchange to be contemporaneous. At issue here is whether the exchange was “in fact a substantially contemporaneous exchange.” As an initial matter, the failure to perfect a non-purchase money security interest within the § 547(e)(2) grace-period does not foreclose a finding that, under § 547(c)(1), the transfer of the security interest and the provision of the new value were in fact substantially contemporaneous. See In re Dorholt, Inc., 224 F.3d 871 (8th Cir.2000); In re Marino, 193 B.R. 907, 912-16 (9th Cir. BAP 1996), aff'd, 117 F.3d 1425 (9th Cir.1997); Pine Top Ins. Co. v. Bank of Am. Nat’l Trust" }, { "docid": "20235665", "title": "", "text": "used to pay creditors as avoidable preferences pursuant to 11 U.S.C. § 547(b). See In re Marshall, 550 F.3d 1251 (10th Cir.2008); In re Wells, 382 B.R. 355 (6th Cir. BAP 2008); Parks v. Boeing Wichita Credit Union (In re Fox), 382 B.R. 800 (Bankr.D.Kan.2008); Mukamal v. Bank of Am. (In re Egidi), 386 B.R. 884 (Bankr.S.D.Fla.2008); Lewis v. Providian Bancorp (In re Getman), 218 B.R. 490 (Bankr.W.D.Mo.1998); Yoppolo v. Greenwood Trust (In re Spitler), 213 B.R. 995 (Bankr.N.D.Ohio 1997). “These courts reason that the debtor, even if never in actual possession of the loaned proceeds, exercises dominion or control over them as evidenced by an ability to direct their distribution.” In re Marshall, 550 F.3d at 1256 (citations omitted). The Fifth Circuit has used a similar standard to determine when property that is transferred is “property of the Debtor.” See In re Southmark Corp., 49 F.3d 1111, 1116 (5th Cir.1995). “If the debtor determines the disposition of funds from the third party and designates the creditor to be paid, the funds are available for payment to creditors in general and the funds are assets of the estate. In this event, because the debtor controlled the funds and could have paid them to anyone, the money is treated as having belonged to her for purposes of preference law whether or not she actually owns it.” Id. at 1116-17 n. 17. Section § 547(b) of the Bankruptcy Code states in relevant part: [T]he trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made on or within 90 days before the date of the filing of the petition; (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent" }, { "docid": "20921486", "title": "", "text": "Pac. Fisheries, Inc., 16 F.3d 313, 315 (9th Cir.1994). Trustee has the burden of establishing that a transfer was avoidable under § 547(b) by proving all the elements thereunder, In re Flooring Concepts, Inc., 37 B.R. 957, 960 (9th Cir. BAP 1984), by a preponderance of the evidence. In re Bullion Reserve of North America, 836 F.2d 1214, 1217 (9th Cir.), cert. denied sub nom. Bozek v. Danning, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988). Hall-Mark has the burden of proving the elements under the exceptions provided in § 547(e). 11 U.S.C. § 547(g). The parties stipulated to facts proving the existence of elements (2), (4) and (6), above. The remaining elements which the Trustee was required to prove were: 1) the property was property of the debtor; (3) the transfer was on account of an antecedent debt; and (5) the transfer was made within the 90-day period. A. Transfer of Property of the Estate The threshold finding in a § 547(b) analysis is that the property transferred was property of the estate. “[A] transfer may be avoided under section 547(b) if it involves property of the debtor and the transfer reduces the amount of the bankruptcy estate available for the payment of other creditors.” Id., citing In re Cal. Trade Tech. Schools, Inc., 923 F.2d 641, 645 (9th Cir.1991). Thus, the “diminution of estate” doctrine has been developed to test whether a debtor controlled transferred property to the extent that he owned it. Kemp Pac. Fisheries, 16 F.3d at 316; see generally 4 CollieR on BANKRUPTCY, § 547.03[2] at 547-22.1— 547-31 (15th ed. 1994). A debtor’s property consists of all of the debtor’s “legal or equitable interests.” § 541(a)(1). Property of the debtor is defined broadly. Bullion Reserve, 836 F.2d at 1217. A debtor’s interest in property includes possession, custody, and control. H.R.Rep. No. 595, 95th Cong., 1st Sess. 314 (1977), reprinted in 1978 U.S.C.C.A.N. 5787, 5963, 6271. California state law determines whether a certain asset constitutes property of the estate. Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136" }, { "docid": "18514505", "title": "", "text": "Property ” A trustee in bankruptcy can avoid a transfer that is either preferential, as defined by § 547(b) or fraudulent, as defined by § 548(a). But in either case, the transfer must be “of an interest of the debtor in property.” 11 U.S.C. §§ 547(b), 548(a). The reach of this avoidance power is limited to transfers of “property of the debtor.” Begier v. IRS, 496 U.S. 53, 58, 110 S.Ct. 2258, 2263, 110 L.Ed.2d 46 (1990). The scope of the debtor’s bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Section 541(d) further explains that where the debtor holds only legal title and not an equitable interest, the interest becomes property of the estate only to the extent of the debtor’s legal title. “Because a debtor does not own an equitable interest in property he holds in trust for another, that interest is not ‘property of the estate.’ Nor is such an equitable interest ‘property of the debtor’ for purposes of § 547(b).” Begier, 496 U.S. at 59, 110 S.Ct. at 2263. The primary consideration in determining if funds are property of the debtor’s estate is whether the payment of those funds diminished the resources from which the debtor’s creditors could have sought payment. Conversely, if funds cannot be used to pay the debtor’s creditors, then they generally are not deemed an asset of the debtor’s estate for preference purposes. A common example is when a debtor holds funds in trust for another. In re Southmark, 49 F.3d 1111, 1117 (5th Cir.1995). Based on the facts of the transaction and the Agreement, both the district court and the bankruptcy court determined that because Chase neither owned nor attempted to transfer the mortgages themselves, neither Chase nor Maple ever held the equitable ownership of the funds transferred from Chase to Maple. Therefore, the transfer of the $4.5 million to Chase did not diminish Maple’s estate, and was not avoidable as either a preferential or a fraudulent transfer. The Burden of Proof The Trustee' argues that" }, { "docid": "16503745", "title": "", "text": "should be affirmed. A. Section 517(b) and the Earmarking Doctrine Section 547(b) provides: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debt- or in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between 90 days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b) (emphasis added). The parties agree that, with the exception of the element here that the Transfer be a “transfer of an interest of the debtor in property,” all elements of § 547(b) have been met. The phrase “transfer of an interest of the debtor in property” in § 547(b) is not expressly defined by the Bankruptcy Code, but it is well-established that it is broadly defined, and guidance is to be drawn from the definition of “property of the estate” set forth in § 541(a). Begier v. IRS, 496 U.S. 53, 58-59, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990); Bailey v. Hazen (In re Ogden), 243 B.R. 104, 112-13 (10th Cir. BAP 2000) (relying on Payne v. Clarendon Nat’l Ins. (In re Sunset Sales, Inc.), 220 B.R. 1005, 1013 (10th Cir. BAP 1998), aff'd 195 F.3d 568 (10th Cir.1999)). The term “property of the estate” is defined, in relevant part, as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). See generally United" }, { "docid": "1538422", "title": "", "text": "the “good faith transferee” defense of Section 550 of the Code. Scotiabank argues that it acquired for value from R & G Mortgage the loan and the mortgage securing the loan presented for recording in the Registry of Property without knowing the future title issues of the mortgage due to the error in the description of the main land to which Debtors’ parcel was to be segregated. Thus, the creditor claims that they meet the requirements to be considered a “good faith transferee” under 11 U.S.C. § 550(b) and therefore that Debtors are not allowed to avoid the cautionary notice. In pertinent part, Section 550 provides that: (a) Except as otherwise provided in this section, to the extent that a transfer is avoided under section 544, 545, 547, 548, 549, 553(b), or 724(a) of this title, the trustee may recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property, from— (1) the initial transferee of such transfer or the entity for whose benefit such transfer was made; or (2) any immediate or mediate transferee of such initial transferee. (b) The trustee may not recover under section [1] (a)(2) of this section from— (1) a transferee that takes for value, including satisfaction or seeming of a present or antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided; or (2) any immediate or mediate good faith transferee of such transferee. Section 550 provides that to the extent a transfer is avoided pursuant to various sections, including § 547, the trustee may recover the property transferred, or its value, for the benefit of the estate, from the initial transferee or any immediate or mediate transferee of such initial transferee. 11 U.S.C. § 560(a). However, the trustee may not recover from “a transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith, and without knowledge of the voidability of the transfer avoided”. 11 U.S.C. § 550(b). In re VJ Int’l, Inc., 359 B.R. 401, 409 (Bankr. D. Puerto Rico" }, { "docid": "7404649", "title": "", "text": "at issue was preferential or fraudulent, with the exception of a brief section in the Defendants’ motion, the parties confined their arguments exclusively to 11 U.S.C. § 547. That section serves a dual purpose: “to discourage actions by creditors that might prematurely compel the filing of a petition and to secure an equal distribution of assets among creditors of like class.” Section 547(b) provides: [T]he trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made (A)on or within 90 days before the date of the filing of the petition; ... and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. A trustee bears the burden to prove these elements by a preponderance of the evidence, and a failure to prove even one of the elements negates the trustee’s claim. For the purposes of these cross-motions, the parties concede that all elements have been satisfied except for the threshold requirement that the transfer be of “an interest of the debtor in property.” The Bankruptcy Code does not define that phrase, but guidance as to its meaning “is to be drawn from the definition of ‘property of the estate’ set forth in § 541(a).” Section 541(a)(1) defines “property of the estate” as “all legal or equitable interests of the debtor in property as of the commencement of the case,” which the Supreme Court has held is coextensive with § 547(b)’s “an interest of the debtor in property.” In other words, “an interest of the debtor in property” as used in § 547(b) “is best understood as that property that would have been part of the estate had it not been" } ]

[ { "docid": "22672187", "title": "", "text": "jury found Johnson and Cassidy guilty of murder in the first degree without recommendation of mercy, and they were sentenced to death. The convictions of Johnson and Cassidy became final six years ago, when the New Jersey Supreme Court affirmed them upon direct appeal and the time expired for petitioners to seek certiorari from the decision. There followed a battery of collateral attacks in state and federal courts, based on new factual allegations, in which petitioners repeatedly and unsuccessfully assailed the vol-untariness of their confessions. This proceeding arises out of still another application for post-conviction relief, accompanied by a fresh set of factual allegations, in which petitioners have argued in part that their confessions were inadmissible under the principles of Escobedo. The court below rejected the claim, holding that Esco-bedo did not affect convictions which had become final prior to the date of that decision, and it is this holding which we are principally called upon to review. In view of the standards announced one week ago concerning the warnings which must be given prior to in-custody interrogation, this case also obliges us to determine whether Miranda should be accorded retroactive application. In the past year we have twice dealt with the problem of retroactivity in connection with other constitutional rules of criminal procedure. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966). These cases establish the principle that in criminal litigation concerning constitutional claims, “the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application.” 381 U. S., at 628; 382 U. S., at 410. These cases also delineate criteria by which such an issue may be resolved. We must look to the purpose of our new standards governing police interrogation, the reliance which may have been placed upon prior decisions on the subject, and the effect on the administration of justice of a retroactive application of Escobedo and Miranda. See 381 U. S., at 636; 382 U. S., at 413. In Linkletter we declined to apply retroactively" } ]

[ { "docid": "23158554", "title": "", "text": "contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214. Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest. The judgment is reversed and the case remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow. II. Turning to United States ex rel. Dash v. Follette, Foster Dash was sentenced on August 3, 1959, in the New York state courts on plea of guilty to a charge of robbery second degree, to imprisonment for a term of 8 to 12 years as a second felony offender. Dash sought release by writ of error coram nobis on the ground that a false confession was obtained from him after indictment in violation of his right to counsel, and that his plea of guilty was induced by advice of counsel that the confession would negate any chance of acquittal and by a threat by the trial" }, { "docid": "23158553", "title": "", "text": "counsel and proper questioning by the judge at the plea taking to establish voluntariness without more, even where the allegations of the habeas corpus petition raise questions which cannot be answered by reference to the transcript alone. This court has recently discussed the reasons why the voluntary guilty plea constitutes a waiver of all non-jurisdictional defects, United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 at 213 (2 Cir. 1967): There is nothing inherent in the nature of a plea of guilty which ipso facto renders it a waiver of a defendant’s constitutional claims. Rather, waiver is presumed because ordinarily such a plea is an indication by the defendant that he has deliberately failed or refused to raise his claims by available state procedures; therefore, principles of comity and the in terests of orderly federal-state relations require that he should not be allowed to present these claims to the federal courts. A distinguishing feature of the present case, however, is that the only available state procedure by which he could contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214. Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to" }, { "docid": "22667301", "title": "", "text": "defective, but that had nevertheless been approved by this Court in Stein v. New York, 346 U. S. 166 (1953). Hence the advice of counsel could not remedy or offset the constitutional defect infused into the pleading process. Therefore, respondents are entitled to relief if they can establish that confessions were coerced from them and that their guilty pleas were motivated in significant part by their inability to challenge the validity of the confessions in a constitutionally adequate procedure. By such a showing they would establish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate that their respective pleas were the product of the State’s illegal action. The Court seeks to avoid the impact of Jackson v. Denno upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court’s confused pattern of retroactivity rules. Jackson v. Denno has been held to be retroactive, at least in the sense that it requires hearings to determine the voluntariness of pre-Jackson confessions that were introduced at trial. The Court today decides, however, that Jackson’s effect is to be limited to situations in which the confession was introduced at trial and is to have no application whatever to guilty pleas. In short, Jackson v. Denno is now held to be only partially retroactive, a wholly novel and unacceptable' result. As I understand the Court’s opinion, there are basically three reasons why the Court rejects the contention that the Jackson-Denno defect may unconstitutionally infect the pleading process. The first is the highly formalistic notion that the guilty plea, and not the antecedent confession, is the basis of the judgments against respondents. Of course this is true in the technical sense that the guilty plea is always the legal basis of a judgment of conviction entered thereon. However, this argument hardly disposes adequately of the contention that the plea in turn was at least partially induced, and therefore is tainted, by the fact that no constitutionally adequate procedures existed to test the validity of a highly prejudicial and allegedly coerced confession. The Court’s formalism is symptomatic of the" }, { "docid": "22667315", "title": "", "text": "If this were not true, then no guilty plea could constitute an effective waiver, for the risk of error or adverse result is inherent in every criminal proceeding, and it would be open to every defendant to contend that this risk induced his guilty plea. The Court of Appeals held that a plea of guilty was not voluntary “if the plea was substantially motivated by a coerced confession the validity of which [the defendant] was unable, for all practical purposes, to contest.” 409 F. 2d, at 1023. I would accept this formulation with the understanding that a “substantial” motivating factor is any one which is not merely de minimis. Ordinarily, a decision to plead guilty is the result of numerous considerations. As long as a defendant was in fact motivated in significant part by the influence of an unconstitutionally obtained confession that he had no adequate means to challenge, I would relieve him of the consequences of his guilty plea. See, e. g., Johnson v. New Jersey, 384 U. S. 719, 727-728 (1966); Tehan v. Shott, 382 U. S. 406, 416 (1966); Linkletter v. Walker, 381 U. S. 618, 639 and n. 20 (1965). Respondents have never had a hearing in the state courts on their coerced-confession claims because the state courts rejected their contentions on the pleadings. In these circumstances, the Court of Appeals properly instructed the District Court to afford the State a reasonable time to proceed with its own hearings, if it be so advised. For example, respondent Dash stated the following in his petition to the District Court: “The futility of relator’s position is more clearly seen when this Court considers the fact, that the only choice remaining to him— beside the entry of the plea of guilty to a crime that he had not committed — was to proceed to trial in the hope of challenging the admissibility of the alleged -coerced confession. For it was only in the case of Jackson v. Denno . . . that the Court recognized the insoluble plight of a defendant in New York, faced with the decision whether" }, { "docid": "8032946", "title": "", "text": "Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963): Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the ha-beas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts. In Ross and Dash we also rejected the argument that defendants who refused to run the pre-Jackson gantlet could be said to have deliberately waived the right to test the voluntariness of their confessions. “The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.” United States ex rel. Ross v. McMann, supra at 1024 of 409 F.2d. For the reasons set forth in Ross and Dash, we think that the allegations in Williams’ petition are sufficient to require a hearing on the voluntariness of his guilty plea. He says that he was threatened with a pistol and that he confessed to a “tale” narrated by a plainclothesman. He says that the confession was the only evidence against him, an allegation which, if true, makes this an even stronger case than Ross or Dash. He says that he was not even in the state at the time of the alleged crime. None of these allegations are controverted by the record. Unlike United States ex rel. Rosen v. Follette, 409 F.2d 1042 (2 Cir. February 26, 1969) (en banc), therefore, Williams’ petition alleges significantly more than the “rather vague claim that the plea was somehow infected by the confession.” at 1045. Despite six coram nobis applications in New York, Williams has" }, { "docid": "22667263", "title": "", "text": "Mr. Justice White delivered the opinion of the Court. The petition for certiorari, which we granted, 396 U. S. 813 (1969), seeks reversal of three separate judgments of the Court of Appeals for the Second Circuit ordering hearings on petitions for habeas corpus filed by the respondents in this case. The principal issue before us is whether and to what extent an otherwise valid guilty plea may be impeached in collateral proceedings by assertions or proof that the plea was motivated by a prior coerced confession. We find ourselves in substantial disagreement with the Court of Appeals. I The three respondents now before us are Dash, Richardson, and Williams. We first state the essential facts involved as to each. Dash: In February 1959, respondent Dash was charged with first-degree robbery which, because Dash had previously been convicted of a felony, was punishable by up to 60 years’ imprisonment. After pleading guilty to robbery in the second degree in April, he was sentenced to a term of eight to 12 years as a second-felony offender. His petition for collateral relief in the state courts in 1963 was denied without a hearing. Relief was then sought in the United States District Court for the Southern District of New York where his petition for habeas corpus alleged that his guilty plea was the illegal product of a coerced confession and of the trial judge’s threat to impose a 60-year sentence if he was convicted after a plea of not guilty. His petition asserted that he had been beaten, refused counsel, and threatened with false charges prior to his confession and that the trial judge’s threat was made during an off-the-record colloquy in one of Dash’s appearances in court prior to the date of his plea of guilty. Dash also asserted that his court-appointed attorney had advised pleading guilty since Dash did not “stand a chance due to the alleged confession signed” by him. The District Court denied the petition without a hearing because “a voluntary plea of guilty entered on advice of counsel constitutes a waiver of all nonjurisdictional defects in any prior" }, { "docid": "22667278", "title": "", "text": "cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts. IY We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus. Nor do we deem the situation substantially different where the defendant’s plea was entered prior to Jackson v. Denno, 378 U. S. 368 (1964). At issue in that case was the constitutionality of the New York procedure for determining the voluntariness of a confession offered in evidence at a jury trial. This procedure, which would have been applicable to the respondents if they had gone to trial, required the trial judge, when the confession was offered and a prima facie case of voluntariness established, to submit the issue to the jury without himself finally resolving disputed issues of fact and determining whether or not the confession was voluntary. The Court held this procedure unconstitutional because it did not “afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.” 378 U. S., at 377. In reaching that conclusion, the Court overruled Stein v. New York, 346 U. S. 156 (1953), which had approved the New York practice. Whether- a guilty plea was entered before or after Jackson v. Denno, the question of the validity of the plea remains the same: was the plea a voluntary and intelligent act of the defendant? As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno, each" }, { "docid": "23158581", "title": "", "text": "cry wolf too often. Accordingly, I believe that when, as in Ross and Dash, a petitioner alleges facts sufficient to support his claim that his guilty plea was substantially induced by the existence of a confession illegally obtained from him which he had no adequate means of challenging, and his allegations are not controverted by the record, we cannot avoid our duty — time consuming as it may be — to grant him a hearing. Of course, we are not suggesting for a moment that the writ should be sustained after such hearing. The petitioner must carry the burden of establishing that the coerced confession substantially motivated him in pleading guilty. Thus, we are a long way from the house of horrors which the dissenting opinions suggest would confront us if a reproseeution were ordered. We do no more today than to determine that all petitions cannot be thrown out without regard to their merits merely because “no certain answers” can be given with the precision of a mathematical equation — a condition which the dissenters would seem to require. If this test had validity no court would ever inquire into the voluntariness of a plea of guilty or the voluntariness of a confession, for voluntariness is a purely subjective action and never can “certain answers” be given by the fact finder. One of my dissenting brothers recognizes that “Absent some credible and detailed proof to the contrary, we must assume that [defendant’s] interests have been protected, and that pleas of guilty would not have been offered without substantial basis for believing [they] were guilty * * (Emphasis added.) Ross and Dash merely ask for the chance to give this proof at a hearing, which I cannot find any sound basis for denying in light of the allegations in their petitions. . Administrative Office of the United States Courts, Annual Report of the Director, 1966 and 1967, Tables C-3 and C-4. The information for 1968 is not yet published. ANDERSON, Circuit Judge (concurring) : I concur in the opinions of Circuit Judges J. JOSEPH SMITH and IRVING R. KAUFMAN. FEINBERG," }, { "docid": "4217682", "title": "", "text": "asserted that his counseled plea of guilty to a felony under New York law was involuntary because it had been motivated by a prior coerced confession. The respondents contended that if their confessions were found to be involuntary, and hence inadmissible, their pleas must also be set aside. The Second Circuit agreed, ordering evidentiary hearings on the voluntariness of the confessions. As Justice White wrote, It was the Court of Appeals’ view that a plea of guilty is an effective waiver of pretrial irregularities only if the plea is voluntary and that a plea is not voluntary if it is the consequence of an involuntary confession. That the petitioner was represented by counsel and denied the existence of coercion or promises when tendering his plea does not foreclose a hearing on his petition for habeas corpus alleging matters outside the state court record. McMann, 397 U.S. at 764-65, 90 S.Ct. at 1445-46. The Supreme Court reversed, finding itself in “substantial disagreement with the Court of Appeals.” Id. at 760, 90 S.Ct. at 1443. Speaking for a majority of the Court, Justice White observed: The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to minimize the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this. Id. at 767-68, 90 S.Ct. at 1446-48. Application of this rule in the three individual appeals consolidated in McMann is particularly illuminating. Respondent Dash, facing first-degree robbery charges carrying a" }, { "docid": "22691410", "title": "", "text": "be tried without a jury. Thus, in substance, the choice that confronted Brady — jury trial or guilty plea — was the same that faced Parker. There is room for argument that a direct confrontation between a trial judge and the defendant would have more impact upon the accused than a statute. However, when the accused appears before the trial judge, he at least has an opportunity to present his views to the judge, and, if all else fails, to preserve a record for direct or collateral review of any overreaching by the trial court. North Carolina argues that Jackson ought not to be applied retroactively so as to affect guilty pleas entered prior to that decision. In one sense, of course, the Jackson retroactivity problem is chimerical, for the long-standing constitutional requirement that valid guilty pleas be voluntary and intelligent was not altered by that decision. However, Jackson did apply the standard of voluntariness in a new context by considering the inducement to plead guilty supplied by an unconstitutional capital punishment scheme. In a sense, therefore, Jackson did in fact mandate a new application of the voluntariness test. To the extent that the retroactivity issue need be resolved, I have no difficulty in concluding that Jackson should be so applied as to provide relief for those who suffered the very constitutional vices that we condemned in that case. The entry of a guilty plea concerns the very essence of the guilt-determining process, and, if that plea is involuntarily induced, the result is “to infect a criminal proceeding with the clear danger of convicting the innocent.” Tehan v. Shott, 382 U. S. 406, 416 (1966). See Johnson v. New Jersey, 384 U. S. 719, 727-729 (1966); Linkletter v. Walker, 381 U. S. 618 (1965). If this statement means that no plea can be rendered involuntary by the statutory scheme, it was at least an obscure, not to say highly misleading, way of saying so. Laboy v. New Jersey, 266 F. Supp. 581 (D. C. N. J. 1967), cited in Jackson, upon which the Court now seizes, is merely an example" }, { "docid": "22667279", "title": "", "text": "held this procedure unconstitutional because it did not “afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.” 378 U. S., at 377. In reaching that conclusion, the Court overruled Stein v. New York, 346 U. S. 156 (1953), which had approved the New York practice. Whether- a guilty plea was entered before or after Jackson v. Denno, the question of the validity of the plea remains the same: was the plea a voluntary and intelligent act of the defendant? As we have previously set out, a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno, each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions. Such showing cannot be made, for precisely this challenge was presented to the New York courts and to this Court in Stein v. New York, supra, and in 1953 this Court found no constitutional infirmity in the New York procedures for dealing with coerced-confession claims. Counsel for these respondents cannot be faulted for not anticipating Jackson v. Denno or for considering the New York procedures to be as valid as the four dissenters in that case thought them to be. We are unimpressed with the argument that because the decision in Jackson has been applied retroactively to defendants who had previously gone to trial, the defendant whose confession allegedly caused him to plead guilty prior to Jackson is also entitled to a hearing on the voluntariness of his confession and to a trial if his admissions are held to have been" }, { "docid": "22667302", "title": "", "text": "decides, however, that Jackson’s effect is to be limited to situations in which the confession was introduced at trial and is to have no application whatever to guilty pleas. In short, Jackson v. Denno is now held to be only partially retroactive, a wholly novel and unacceptable' result. As I understand the Court’s opinion, there are basically three reasons why the Court rejects the contention that the Jackson-Denno defect may unconstitutionally infect the pleading process. The first is the highly formalistic notion that the guilty plea, and not the antecedent confession, is the basis of the judgments against respondents. Of course this is true in the technical sense that the guilty plea is always the legal basis of a judgment of conviction entered thereon. However, this argument hardly disposes adequately of the contention that the plea in turn was at least partially induced, and therefore is tainted, by the fact that no constitutionally adequate procedures existed to test the validity of a highly prejudicial and allegedly coerced confession. The Court’s formalism is symptomatic of the desire to ignore entirely the motivational aspect of a decision to plead guilty. As long as counsel is present when the defendant pleads, the Court is apparently willing to assume that the government may inject virtually any influence into the process of deciding on a plea. However, as I demonstrated in Parker and Brady, this insistence upon ignoring the factors with which the prosecution confronts the defendant before he pleads departs broadly from the manner in which the voluntariness of guilty pleas has traditionally been approached. In short, the critical question is not, as the Court insists, whether respondents knowingly decided to plead guilty but why they made that decision. Cf. Harrison v. United States, 392 U. S. 219, 223 (1968). Secondly, the Court views the entry of the guilty pleas as waivers of objections to the allegedly coerced confessions. For the reasons previously stated, I do not believe that the pleas were legally voluntary if respondents’ allegations are proved. Nor were the pleas the relinquishment of a known right, for it was only when" }, { "docid": "23158557", "title": "", "text": "had pleaded guilty in the state court. Here Dash alleges coercion of his confession. (Conviction of two of his co-defendants who went to trial was set aside because it was held that their confessions were coerced. People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596, aff’d 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961).) He also alleges coercion of his plea, relying partly on the existence and threatened use of his coerced confession, and partly on an alleged threat by the judge to impose the maximum possible sentence if he were found guilty after a trial. The latter ground was dismissed from consideration by the judge because the report of the state court proceeding, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), indicated that the prosecutor had filed an affidavit categorically denying that the trial judge ever threatened the defendant. In this case, as in Ross v. McMann, the claim is made that the existence of a coerced confession, in a ease determined prior to Jackson v. Denno, supra, so tainted the state court proceedings that the plea was not voluntary. For the reasons set forth in Ross v. McMann, we think the allegations here sufficient to call for a hearing on the voluntariness of the plea unless a full hearing and determination of the issue is provided in the courts of the state. As we held in Boss, “The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.” In these circumstances there is an issue as to the motivation of the plea which cannot be resolved without a hearing. If it was motivated by the claimed threat of the judge, or the existence and threatened use of a coerced confession, it may be found not" }, { "docid": "22667291", "title": "", "text": "right to counsel is the right to the effective assistance of counsel. See Reece v. Georgia, 350 U. S. 85, 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. S. 444, 446 (1940); Powell v. Alabama, 287 U. S. 45, 57 (1932). Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. In this case the Court moves yet another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of government may have induced a particular plea. Respondents alleged in some detail that they were subjected to physical and mental coercion in order to force them to confess; that they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reasonable alternative to pleading guilty. Respondents’ contention, in short, is that their pleas were the product of the State’s illegal action. Notwithstanding the possible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue. I The basic principle applicable to this case was enunciated for the Court by Mr. Justice Black in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 118 (1956): “[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are “based on” coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession" }, { "docid": "22667314", "title": "", "text": "defense attorney had initially announced that the defendant would not testify, and the defendant did in fact take the stand only after the prosecution had introduced his confessions. In that circumstance the burden was appropriately placed upon the prosecution to rebut the clear inference that the inadmissible confessions induced the subsequent testimony. By contrast, in the instant case we are dealing with guilty pleas that are usually the culmination of a decision-making process in which the defendant has taken into account numerous factors. It can therefore hardly be established on the basis of mere allegations that, in a given case, a coerced confession induced the guilty plea. This factual difference indicates no more, however, than that the respondents here may have a more difficult time than the petitioner in Harrison in substantiating their respective claims. If the procedures for challenging the validity of confessions are constitutionally adequate, then, a persuasive justification for the failure to invoke them does not arise from the fear that a confession, erroneously or otherwise, will be determined to be voluntary. If this were not true, then no guilty plea could constitute an effective waiver, for the risk of error or adverse result is inherent in every criminal proceeding, and it would be open to every defendant to contend that this risk induced his guilty plea. The Court of Appeals held that a plea of guilty was not voluntary “if the plea was substantially motivated by a coerced confession the validity of which [the defendant] was unable, for all practical purposes, to contest.” 409 F. 2d, at 1023. I would accept this formulation with the understanding that a “substantial” motivating factor is any one which is not merely de minimis. Ordinarily, a decision to plead guilty is the result of numerous considerations. As long as a defendant was in fact motivated in significant part by the influence of an unconstitutionally obtained confession that he had no adequate means to challenge, I would relieve him of the consequences of his guilty plea. See, e. g., Johnson v. New Jersey, 384 U. S. 719, 727-728 (1966); Tehan v." }, { "docid": "22667271", "title": "", "text": "748. For present purposes, we put aside those cases where the defendant has his own reasons for pleading guilty wholly aside from the strength of the case against him as well as those cases where the defendant, although he would have gone to trial had he thought the State could not prove its case, is motivated by evidence against him independent of the confession. In these cases, as the Court of Appeals recognized, the confession, even if coerced, is not a sufficient factor in the plea to justify relief. Neither do we have before us the uncounseled defendant, see Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), nor the situation where the circumstances that coerced the confession have abiding impact and also taint the plea. Cf. Chambers v. Florida, 309 U. S. 227 (1940). It is not disputed that in such cases a guilty plea is properly open to challenge. The issue on which we differ with the Court of Appeals arises in those situations involving the counseled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to min imize the penalty that might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this. Ill Since we are dealing with a defendant who deems his confession crucial to the State’s case against him and who would go to trial if he thought his chances of acquittal were good, his decision to plead guilty or not turns on whether he thinks the law will allow his confession to be used against him. For the" }, { "docid": "23158602", "title": "", "text": "into evidence the post-indictment statement of Waterman taken in the absence of counsel, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961). Waterman and Devine later pleaded guilty to assault second degree and were sentenced to 2% to 3 years. Dash then brought coram nobis proceedings, seeking treatment similar to Waterman and Devine on the ground that his confession had induced his plea of guilty, and he also claimed his plea was coerced by the judge’s threat. His petition was denied by all courts although in the Court of Appeals two judges voted to remand for a hearing as to whether the guilty plea was coerced. In its memorandum decision, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), the Court of Appeals, because Jackson v. Denno, supra, had but recently been decided, expressly approved its earlier holding in People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190 (1962), that it would not listen to post-conviction attacks on confessions where defendants had pleaded guilty. The court wrote: “A defendant who has knowingly and voluntarily pleaded guilty may not thereafter attack the judgment of conviction entered thereon by coram nobis or other post-conviction remedy on the ground that he had been coerced into making a confession and that the existence of such coerced confession induced him to enter the plea of guilty. If a defendant desires to contest the voluntariness of his confession, he must do so by pleading not guilty and then raising the point upon the trial; he may not plead guilty and then, years later, at a time when the prosecution is perhaps unable to prove its ease, assert his alleged constitutional violation. The issue as to whether the confession was illegally obtained is waived by the guilty plea.” Thereafter Dash knocked on the federal court doors of the Southern District. In my view, Dash, advised by counsel, made a deliberate and voluntary choice that his interests were best served by his plea of guilty. He must have known that Fields had made a statement to the police which implicated" }, { "docid": "22667316", "title": "", "text": "Shott, 382 U. S. 406, 416 (1966); Linkletter v. Walker, 381 U. S. 618, 639 and n. 20 (1965). Respondents have never had a hearing in the state courts on their coerced-confession claims because the state courts rejected their contentions on the pleadings. In these circumstances, the Court of Appeals properly instructed the District Court to afford the State a reasonable time to proceed with its own hearings, if it be so advised. For example, respondent Dash stated the following in his petition to the District Court: “The futility of relator’s position is more clearly seen when this Court considers the fact, that the only choice remaining to him— beside the entry of the plea of guilty to a crime that he had not committed — was to proceed to trial in the hope of challenging the admissibility of the alleged -coerced confession. For it was only in the case of Jackson v. Denno . . . that the Court recognized the insoluble plight of a defendant in New York, faced with the decision whether to challenge the admissibility of a confession, had in violation of the United States Constitution. Relator had no such remedy when he was faced with this situation.” Respondent Williams’ petition contains similar references to Jackson v. Denno. Respondent Richardson’s principal claim relates to the adequacy of the legal assistance afforded him. He concedes that the pre-Jackson-Denno procedure played no role in his decision to plead guilty. See, e. g., Price v. Johnston, 334 U. S. 266, 292 (1948). See, e. g., United States ex rel. Nixon v. Follette, 299 F. Supp. 253 (D.C.S.D.N.Y. 1969)." }, { "docid": "22667292", "title": "", "text": "claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I cannot agree, for it is clear that the result reached by the Court is inconsistent not only with the prior decisions of this Court but also with the position adopted by virtually every court of appeals that has spoken on this issue. I The basic principle applicable to this case was enunciated for the Court by Mr. Justice Black in Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 118 (1956): “[A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” The critical factor in this formulation is that convictions entered on guilty pleas are not valid if they are “based on” coerced confessions. A defendant who seeks to overturn his guilty plea must therefore demonstrate the existence of a sufficient interrelationship or nexus between the plea and the antecedent confession so that the plea may be said to be infected by the State's prior illegal action. Thus to invalidate a guilty plea more must be shown than the mere existence of a coerced confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea. The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decreeing that the assistance of “reasonably competent” counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accommodate cases such as Chambers v. Florida, 309 U. S. 227 (1940). In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was" }, { "docid": "22667300", "title": "", "text": "always open to a defendant to establish that his guilty plea was not a constitutionally valid waiver, that he did not deliberately bypass the orderly processes provided to determine the validity of confessions. Cf. Fay v. Noia, 372 U. S. 391, 438-440 (1963). Whether or not there has been a deliberate bypass can be determined, of course, only by a consideration of the total circumstances surrounding the entry of each plea. II In the foregoing discussion I have assumed that the State has provided a constitutionally adequate method to challenge an allegedly invalid confession in the trial court. That assumption is not applicable to respondents in this case, however, because, as we held in Jackson v. Denno, 378 U. S. 368 (1964), the procedure that New York employed at the time their pleas were tendered failed to provide a constitutionally acceptable means to challenge the validity of confessions. Thus, even the most expert appraisal and advice by counsel necessarily had to take into account a procedure for challenging the validity of confessions that was fundamentally defective, but that had nevertheless been approved by this Court in Stein v. New York, 346 U. S. 166 (1953). Hence the advice of counsel could not remedy or offset the constitutional defect infused into the pleading process. Therefore, respondents are entitled to relief if they can establish that confessions were coerced from them and that their guilty pleas were motivated in significant part by their inability to challenge the validity of the confessions in a constitutionally adequate procedure. By such a showing they would establish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate that their respective pleas were the product of the State’s illegal action. The Court seeks to avoid the impact of Jackson v. Denno upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court’s confused pattern of retroactivity rules. Jackson v. Denno has been held to be retroactive, at least in the sense that it requires hearings to determine the voluntariness of pre-Jackson confessions that were introduced at trial. The Court today" } ]

[ { "docid": "23288413", "title": "", "text": "no disability, I must respectfully dissent. Plaintiff in this action filed his first application for disability benefits on November 7, 1977. After a hearing, an Administrative Law Judge (AU) denied plaintiff’s claim. The Appeals Council refused plaintiff’s request for review, which a federal district court affirmed on August 14, 1980, and from which there was no appeal. On June 9, 1980, plaintiff filed a second application for disability insurance and for Supplemental Security Income. The Secretary denied these applications initially and on reconsideration, and subsequent to these denials, plaintiff had a hearing before an AU, who also denied his claim. The Appeals Council’s ratification after plaintiff’s request for review was affirmed by the district court. In his appeal, plaintiff claimed that the ALJ abused his discretion by basing his decision upon an “over-reliance” on observations made during the hearing, rather than on evidence produced at the hearing. Apart from any credibility determination, however, there was more than sufficient evidence in the record to affirm the Secretary’s denial of benefits. “[T]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____” 42 U.S.C. § 405(g) (1976); see also Houston v. Secretary of Health and Human Services, 736 F.2d 365, 366 (6th Cir.1984) (“When supported by substantial evidence, the findings of fact of the Secretary are conclusive, and a decision denying benefits cannot be overturned.”); Haynes v. Secretary of Health and Human Services, 734 F.2d 284 (6th Cir.1984). The Supreme Court has stated that substantial evidence is “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, 1427, 28 L.Ed.2d 842 (1971), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); see also Houston v. Secretary of Health and Human Services, 736 F.2d 365, 366 (6th Cir.1984); Kirk v. Secretary of Health and Human Services, 667 F.2d 524 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). This court must review the record in its entirety to" } ]

[ { "docid": "3558973", "title": "", "text": "evidence is “ ‘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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “Substantiality of the evidence must be based upon the record as a whole” and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Garner, 745 F.2d at 388 (quoting Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978)). Once the claimant establishes that he cannot perform his past relevant work, the burden shifts to the Secretary to establish that the claimant retains the residual functional capacity to perform “substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Substantial evidence must support a finding that the claimant has the vocational qualifications to perform specific jobs. Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984) (per curiam). The Secretary may meet this burden by reference to the medical vocational guidelines (“the grids”) unless the claimant suffers from nonexertional limitations that significantly limit the range of work permitted by his exertional limitations. Damron v. Secretary of Health & Human Services, 778 F.2d 279, 281-82 (6th Cir.1985). In this case Cole testified that he suffers chest pain and hypertension accompanied by shortness of breath, dizziness, and headaches. The AU, however, described Cole’s complaints of chest pain as exaggerated, explaining that “[wjhile [appellant] stated that chest pain occurs not only upon exertion or excitement, but at rest also, [Dr. Ganesh’s] report indicated that [appellant] experiences chest pain upon exertion or excitement only.” Dr. Ganesh’s report indicated that Cole’s chest pains may be “brought on” by activity or exertion, but did not mention that Cole suffers chest pain while resting. Moreover, Dr. Patel indicated that Cole has a “[h]istory of chest pains," }, { "docid": "7459719", "title": "", "text": "a sit/stand option with no significant bending or stooping. Claimant argues that the Secretary’s finding that he had the residual functional capacity to perform limited unskilled sedentary work after November 1, 1984 is not supported by substantial evidence. Specifically, claimant argues that his painful back condition resulted in a marked limitation of functional capacity. II. A. This court has jurisdiction on appeal to review the Secretary’s decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. “ ‘Substantial evidence’ means ‘more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary’s findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole.” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and we “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983). The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d). If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied. 20 C.F.R. §§ 404.-1520(b), 416.920(b). If the claimant is not found to have an impairment which significantly limits his or her ability to work (a severe impairment), then he or she is not disabled. 20 C.F.R." }, { "docid": "23299727", "title": "", "text": "evidence. “ ‘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.’” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary’s factual findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole,” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983) (per curiam). The plaintiff has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d)(1)(A). If the plaintiff is working, and the work constitutes substantial gainful activity, benefits are automatically denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If a plaintiff is not found to have an impairment which significantly limits his ability to work (a severe impairment), then he is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). Since the AU found that plaintiff had not worked since he filed his application for disability benefits on January 4, 1989 and that he suffered from a severe impairment, further inquiry was necessary. If a plaintiff is not working and has a severe impairment, it must be determined whether he suffers from one of the “listed” impairments. 20 C.F.R. §§ 404.1520(d), 416.-920(d). If so, benefits are owing without further inquiry. In the instant case, the AU found that plaintiff did not suffer from one of" }, { "docid": "1342055", "title": "", "text": "re Estate of Panico, 268 Ill. App. 585, 591 (1932) (“[E]vidence which renders the existence of the negative probable is sufficient, in the absence of proof to the contrary.”). The ALJ, in failing even to advert to the heroic searches that the SSA made in the divorce records of seven states, which evidence would be probative of, if not compel, a finding of rebuttal under a proper reading of Illinois law, implicitly rejected that proper reading in favor of the erroneous interpretation given by the SSA reviewer. This failure was an error of law that alone would mandate reversal and remand for a redetermination in light of proper legal standards. No such remand is needed in this case, however, for a recital of the undisputed evidence shows that the Secretary’s factual conclusion is not supported by substantial evidence. The statutory formula that we must affirm the Secretary's findings of facts if they are supported by substantial evidence, 42 U.S.C. § 405(g) (Supp. V 1981), requires nevertheless that there be “ ‘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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). It is well established, moreover, that a reviewing court must consider the record as a whole, not seize upon “a specific quantum” of evidence that, taken in isolation, might sustain the administrative decision. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 463-65, 95 L.Ed. 456 (1951)); accord Flores v. Department of Health, Education and Welfare, 465 F.Supp. 317, 320 (S.D.N.Y.1978). Our responsibility is always to ensure that a claim has been fairly evaluated, e.g., Proctor v. Schweiker, 526 F.Supp. 70, 73-74 (D.Md.1981), and “has warrant in the record, viewing that record as a whole,” Boyd v. Folsom, 257 F.2d 778, 781 (3d Cir.1958) (citing Universal Camera, supra). Exercising that responsibility" }, { "docid": "12059299", "title": "", "text": "demand excessive judgment) after November 27, 1977, is not supported by substantial evidence. Specifically, the claimant argues that his depression and obsessive compulsive disorder resulted in a marked limitation of functional capacity. II. A. This court has jurisdiction on appeal to review the Secretary’s decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. “ ‘Substantial evidence’ means ‘more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). When determining whether the Secretary’s findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole,” Allen v. Califano, 613 F.2d 139,145 (6th Cir.1980), and we “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). The Secretary’s determination must stand, regardless of whether the reviewing court would resolve the issues of fact in dispute differently, if the determination is supported by substantial evidence. See Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983). The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d). If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not found to have an impairment which significantly limits his or her ability to work (a severe impairment), then he or she is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant is not working and has a severe impairment, it must be determined whether he or" }, { "docid": "16659836", "title": "", "text": "her to be rehabilitated to the point where she could perform productive work. Dr. Harold W. Meek, a clinical psychologist, completed a residual functional capacity form regarding Wages’ psychiatric impairment. He found it to be moderately severe as it affects her ability to relate to other people, and moderate regarding restriction of daily activities and constriction of interests. The AU found that Wages’ non-exertional impairments do not significantly affect the level of work that she can do. This amounts to a finding that these impairments are not severe. 20 C.F.R. § 404.-1521. He concluded that her exertional impairments are severe. The AU concluded that, despite the severity of her exer-tional impairments and her need to alternate between standing and sitting, Wages has the residual functional capacity for substantial gainful employment of a sedentary nature. The district court adopted the magistrate’s Report and Recommendation. The magistrate had found that the Secretary properly relied on the medical vocational guidelines despite the fact that Wages has some non-exertional limitations. The magistrate noted that these non-exertional limitations were not found to be severe. Review of the Secretary’s decision to deny disability benefits is limited to determining whether there is substantial evidence to support the Secretary’s decision. “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____” 42 U.S.C. § 405(g) (1976). Substantial evidence is “ ‘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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In determining whether the evidence is substantial we must “ ‘take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of H.E.W., 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). The AU relied on the grid in this case to show that Wages is not disabled. Wages argues that reliance on the" }, { "docid": "22096672", "title": "", "text": "not disabled. See Step 7, Findings 7, 11. On appeal, Garner has challenged both bases for the Secretary’s finding of not disabled. Judicial review of the Secretary’s decision is limited in scope to determining whether the findings of fact made by the Secretary are supported by substantial evidence and deciding whether the Secretary employed the proper legal criteria in reaching her conclusion. Walston v. Gardner, 381 F.2d 580, 585 (6th Cir.1967). This Court may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility. Myers v. Richardson, 471 F.2d 1265 (6th Cir.1972). Rather, “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____” 42 U.S.C. § 405(g). The Supreme Court has stated that “substantial evidence” is “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, 1427, 28 L.Ed.2d 842 (1971). Substantiality of the evidence must be based upon the record taken as a whole. Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), citing Futernick v. Richardson, 484 F.2d 647 (6th Cir.1973). “Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the ‘substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978), quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). “We may not focus and base our decision entirely on a single piece of evidence, and disregard other pertinent evidence.” Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). In order for Garner to prevail on this appeal, two findings of the Secretary must be reversed: (a) Garner’s disability would not last for the required twelve month duration, finding 5, and (b) Garner retained the residual functional capacity to do sedentary work, finding 7. Garner challenged both of those findings at district court level. The district court ruled that “plaintiff was disabled within the eyes of" }, { "docid": "23299726", "title": "", "text": "the Secretary. On February 16, 1990, plaintiff suffered another heart attack. Plaintiff reapplied for benefits. In a decision issued on June 28, 1991, plaintiff was found to be disabled as of the date of his second heart attack. Subsequently, plaintiff appealed the Secretary’s earlier denial of benefits, seeking to recover those disability benefits accruing during the period between the alleged onset date (November 30, 1987) and the date on which benefits were ultimately awarded (February 16, 1990). Plaintiff therefore commenced an action for judicial review in the United States District Court for the Western District of Kentucky. The case was referred to a United States Magistrate, who prepared a report and recommendation upholding the denial of benefits. The district court adopted the magistrate’s recommendation and on August 30, 1991, issued an order affirming the Secretary’s denial of benefits. Plaintiff timely filed this appeal. II. This court has jurisdiction on appeal to review the Secretary’s final decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. “ ‘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.’” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary’s factual findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole,” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in" }, { "docid": "8671837", "title": "", "text": "for summary judgment. The Secretary has not filed a cross-motion in this matter. Plaintiff’s motion was referred to a magistrate on May 30, 1984 for report and recommendation. On June 17, 1985, Magistrate Binder issued his report and recommended that Plaintiff’s motion be denied. Plaintiff filed timely objections with this Court, requiring the Court to make a de novo review of those portions of the report to which Plaintiff objected. United States v. Shami, 754 F.2d 670 (6th Cir.1985); Hill v. Duriron Co., Inc., 656 F.2d 1208, 1214 (6th Cir.1981). In evaluating Plaintiff’s objections, this Court’s scope of review is limited to determining whether the Secretary’s decision is supported by substantial evidence. 42 U.S.C. § 405(g); LeMaster v. Weinberger, 533 F.2d 337 (6th Cir.1976). The United States Supreme Court has defined substantial evidence as “ ‘such 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). The Sixth Circuit has also stated that “[sjubstantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the ‘substantiality of evidence must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health and Human Services, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Cory. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). Thus, a reviewing court must evaluate the record as a whole and uphold the Secretary’s decision only if it is supported by substantial evidence on the record. Beavers, 577 F.2d at 387; Heyhner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). In the present case, the AU found that Plaintiff was not disabled within the meaning of the Social Security Act § 223(d)(1). Disability is defined in part as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to" }, { "docid": "3558972", "title": "", "text": "be engaged in any gainful operation.” After considering these two reports, the Appeals Council affirmed the AU’s decision, which became the final decision of the Secretary. The magistrate, on referral of the case, recommended that the Secretary’s decision be reversed, finding that “the ALJ’s determination that plaintiff had transferable skills is erroneous as a matter of law” because the qualities involved in operating a hi-lo are aptitudes rather than skills. The district court rejected the magistrate’s recommendation, finding substantial evidence to support the Secretary’s decision. Pursuant to 42 U.S.C. § 405(g), judicial review of the Secretary’s decision is limited to determining whether substantial evidence exists in the record as a whole to support the decision. The reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). The Secretary is charged with finding the facts relevant to an application for disability benefits, and the Secretary’s findings, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). 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.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). “Substantiality of the evidence must be based upon the record as a whole” and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Garner, 745 F.2d at 388 (quoting Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978)). Once the claimant establishes that he cannot perform his past relevant work, the burden shifts to the Secretary to establish that the claimant retains the residual functional capacity to perform “substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir.1985). Substantial evidence must support a finding that the claimant" }, { "docid": "6283375", "title": "", "text": "expected to produce the alleged disabling pain.” The district court concluded that the medical evidence did not confirm the severity of the pain alleged from lupus or from the lower back disorder and, accordingly, affirmed the Secretary’s denial of benefits. Claimant timely filed this appeal. II. This court has jurisdiction on appeal to review the Secretary’s decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. “ ‘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.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary’s findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole,” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and we “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983) (per curiam). We review appellant’s allegations of disabling pain due to lupus and a lower back disorder under the following standard. Initially, there must be objective evidence of an underlying medical condition. If such evidence exists, there must be objective medical evidence to confirm the severity of the alleged pain arising from that condition or the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged disabling pain. Duncan v. Secretary of Health & Human Servs., 801" }, { "docid": "23389702", "title": "", "text": "supported the Secretary’s finding that claimant could perform sedentary work. Claimant thereafter brought this timely appeal. II. This court has jurisdiction on appeal to review the Secretary’s decision pursuant to 42 U.S.C. § 405(g) which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. “ 'Substantial evidence’ means ‘more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining this question, we must examine the evidence in the record “taken as a whole.” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983) (per curiam). The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d)(1)(A). If the claimant is working, benefits are automatically denied. If a claimant is not found to have an impairment which significantly limits his ability to work (a severe impairment), then he is not disabled. Since the AU found that Maziarz had not worked since 1984 and that he suffered from a severe impairment, further inquiry was necessary. If a claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the “listed” impairments. See 20 C.F.R. § 404.1525(a) and 20 C.F.R. pt. 404, subpt. P, app. 1." }, { "docid": "11074753", "title": "", "text": "Substantial evidence means “more than a mere scintilla. It 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) (Frankfurter, J.)). The inquiry is not whether the court would have reached the same conclusion; substantial evidence may thus be less than a preponderance of the evidence. Hanusiewicz v. Bowen, 678 F.Supp. 474, 476 (D.N.J.1988). However, the reviewing court is under a duty to read the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.1984). In this review, “a court must ‘take into account whatever in the record fairly detracts from its weight.’ ” Willbanks v. Secretary of Health and Human Services, 847 F.2d 301, 303 (6th Cir.1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951) (Frankfurter, J.)). The Secretary is under a corresponding duty to facilitate the court's review: “Where the Secretary is faced with conflicting evidence, he must adequately explain in the record his reasons for rejecting or discrediting competent evidence.” Ogden v. Bowen, 677 F.Supp. 273, 278 (M.D.Pa.1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir.1986)). Access to the Secretary’s reasoning is indeed essential to meaningful court review: Unless the Secretary has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court’s duty to scrutinize the record as a whole to determine whether the conclusions reached are rational. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.1978). In keeping with these principles, “[a] single piece of evidence will not satisfy the substantiality test if the Secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians) — or if" }, { "docid": "22809136", "title": "", "text": "see Havas v. Bowen, 804 F.2d 783, 785 (2d Cir.1986); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). Substantial evidence has been defined as “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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). It is more than a mere scintilla or a touch of proof here and there in the record. Within that limitation on its scope, appellate review of an administrative record is plenary, and not merely a rubber-stamping of the administrative conclusion. See Valente v. Secretary of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984). To determine on appeal whether an AU’s findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.1983). The entire thrust of judicial review under the disability benefits law is to ensure a just and rational result between the government and a claimant, without substituting a court’s judgment for that of the Secretary, and to reverse an administrative determination only when it does not rest on adequate findings sustained by evidence having “rational probative force.” Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217. B. Statutory Requirements We begin by reviewing the statute under which the instant claim is made. To prove entitlement to disability benefits under Title XVI of the Social Security Act, an adult claimant must establish that she suffers from a medically determinable physical impairment that prevents her from engaging in any substantial gainful activity. See 42 U.S.C. § 1382c(a)(3)(A) (1982). In the case of a child under the age of 18, a disability will be recognized, and benefits awarded, if the child suffers" }, { "docid": "11074752", "title": "", "text": "argues that the Appeals Council’s decision to modify the AU’s onset determination is not supported by substantial evidence; that the Secretary employed erroneous legal standards in evaluating the evidence; and that the onset determination of the AU (viz., February 14, 1984) is supported by substantial evidence and should be reinstated by this Court in the form of definitive relief. Reordering the sequence of these issues somewhat, it is the task of this court to determine: (1) whether the Secretary employed the correct legal standards in reaching its decision; (2) whether, after allowing for any errors of law, the determination of the Secretary is supported by substantial evidence; and finally (3) if the Secretary’s onset determination is not supported by substantia] evidence, whether the appropriate relief is a remand for further proceedings or the award of definitive relief. Initially, however, it is necessary to take note of the established legal principles which govern the court’s disposition of these issues. The Secretary’s decision must be upheld if it is supported by “substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla. It 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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938) (Frankfurter, J.)). The inquiry is not whether the court would have reached the same conclusion; substantial evidence may thus be less than a preponderance of the evidence. Hanusiewicz v. Bowen, 678 F.Supp. 474, 476 (D.N.J.1988). However, the reviewing court is under a duty to read the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir.1984). In this review, “a court must ‘take into account whatever in the record fairly detracts from its weight.’ ” Willbanks v. Secretary of Health and Human Services, 847 F.2d 301, 303 (6th Cir.1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951) (Frankfurter, J.)). The Secretary is under a corresponding" }, { "docid": "16747343", "title": "", "text": "Secretary’s “ultimate responsibility for factual determinations.” Beavers v. Secretary of Health, Education & Welfare, 577 F.2d 383, 387 (6th Cir.1978). Since no new evidence adverse to the claimant was taken, this exception did not come into play. Unfortunately, the Appeals Council’s decision does not clearly state which of the four grounds, if any, was relied upon in reversing the AU. Prior to issuing its decision, however, the Appeals Council informed the claimant, in a communication which is part of the record in this case, that “[t]he administrative law judge’s ultimate conclusion as to ‘disability’ is not supported by substantial evidence.” Our review of the opinion of the Appeals Council reveals nothing plainly inconsistent with assumed application of the “substantial evidence” standard. This standard has been defined as “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, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938), for purposes of our review of the Secretary, and there is no reason to suppose that the Secretary’s regulations were drafted with a different meaning in mind. Determining whether substantial evidence supports a conclusion necessarily entails a review of the entire record, though not as searching as in a de novo review. On the basis of the record before us, we cannot conclude that the Appeals Council failed to follow the Secretary’s own regulations and applied an improper standard of review. The remaining issue is thus whether the Secretary’s factual findings, which is to say those made by the final reviewing body, the Appeals Council, 20 C.F.R. § 404.981, are supported by substantial evidence. While it is true that evidence supporting a conclusion may be considered less substantial when an impartial, experienced examiner has drawn conclusions differing from those of the Appeals Council, the substantial evidence standard itself is not modified by such disagreement. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951); Beavers, 577 F.2d" }, { "docid": "22555936", "title": "", "text": "STEPHEN H. ANDERSON, Circuit Judge. Mary Hope Casias appeals from the district court’s order affirming the decision of the Secretary of Health and Human Services to deny her application for Social Security disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423. We affirm. Casias argues that the court erred in two ways: first, by affirming the Administrative Law Judge’s (“AU”) determination that she was not disabled, absent substantial evidence to support that decision; and second, by failing to remand the case to the Secretary for a consultative psychological examination. We must affirm the decision of the Secretary if it is supported by substantial evidence. Campbell v. Brown, 822 F.2d 1518, 1521 (10th Cir.1987) (citing 42 U.S.C. § 405(g)); Nieto v. Heckler, 750 F.2d 59, 61 (10th Cir.1984). 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.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). See Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir.1987). In evaluating the appeal, we neither reweigh the evidence nor substitute our judgment for that of the agency. Jozefowicz v. Heckler, 811 F.2d 1352, 1357 (10th Cir.1987); Cagle v. Califano, 638 F.2d 219, 220 (10th Cir.1981). We examine the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary’s decision and, on that basis, determine if the substantiality of the evidence test has been met. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Dollar v. Bowen, 821 F.2d 530, 532 (10th Cir.1987). If, however, the correct legal test in weighing the evidence has not been applied, these limitations do not apply, and such failure constitutes grounds for reversal. Reyes v. Bowen, 845 F.2d 242, 244 (10th Cir.1988); Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984). Pursuant to the Social Security Act," }, { "docid": "16659837", "title": "", "text": "found to be severe. Review of the Secretary’s decision to deny disability benefits is limited to determining whether there is substantial evidence to support the Secretary’s decision. “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive____” 42 U.S.C. § 405(g) (1976). Substantial evidence is “ ‘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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In determining whether the evidence is substantial we must “ ‘take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of H.E.W., 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). The AU relied on the grid in this case to show that Wages is not disabled. Wages argues that reliance on the grid was improper in her case. She notes that in applying the grid, an AU must make specific findings of fact regarding a claimant’s residual functional capacity, age, education, and work experience. See Kirk v. Secretary, 667 F.2d 524, 528 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). Each of these findings must be based on substantial evidence. Id. at 535. We find that there was not substantial evidence to support a finding that Wages is capable of performing sedentary work. The record clearly shows that claimant cannot sit or stand for long intervals but must be able to move about as she finds necessary. Her testimony at the AU hearing was that she could not sit for very long periods of time without incurring consider able lower back pain. She further testified that her upper back gives her pain when she sits and attempts activity or sits forward. In addition, Dr. Fossett stated Wages should limit lifting, stooping, and prolonged sitting or standing. There is no evidence in" }, { "docid": "12137622", "title": "", "text": "develop the record. IV. We must next determine whether the Secretary’s determination that claimant is not disabled is supported by substantial evidence. This court has jurisdiction on appeal to review the Secretary’s final decision pursuant to 42 U.S.C. § 405(g), which specifies that the Secretary’s factual findings are conclusive if supported by substantial evidence. ‘“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.’ ” Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In determining whether the Secretary’s factual findings are supported by substantial evidence, we must examine the evidence in the record “taken as a whole.” Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), and “ ‘must take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951)). If it is supported by substantial evidence, the Secretary’s determination must stand regardless of whether the reviewing court would resolve the issues of fact in dispute differently. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.1983) (per curiam). The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d)(1)(A). If the claimant is working, benefits are automatically denied. 20 C.F.R. § 404.1520(b). If a claimant is not found to have an impairment which significantly limits his ability to work (a severe impairment), then he is not disabled. 20 C.F.R. § 404.1520(c). Since the AU found that claimant had not worked since 1985 and that he suffered from severe post lumbar fusion and excision and chronic left leg and back pain, further inquiry was necessary. If a claimant is not working and" }, { "docid": "12172013", "title": "", "text": "of mild pressure or tension. Dr. Harvey diagnosed a generalized anxiety disorder but opined that Richardson was competent. On February 12, 1981, he changed his diagnosis to chronic post-traumatic stress disorder. At the hearing before the ALJ Dr. Harvey described the post-traumatic stress syndrome as a collection of psychiatric symptoms which result from an extremely stressful situation such as combat. This resulted, in Richardson’s case, in a diminished capacity to handle any kind of stress and rendered him unable to handle any type of job. Upon examination of Richardson’s medical record, Dr. Harvey conclud ed, contrary to his conclusion of October 3, 1980, that Richardson was not, and had never been, competent. He indicated that the mental condition of a person such as Richardson probably would deteriorate with the passage of time. Our review of the Secretary’s decision to deny disability benefits is limited to determining whether substantial evidence supports the decision. “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g) (1976). Substantial evidence is “ ‘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, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). In determining whether the evidence is substantial we must “ ‘take into account whatever in the record fairly detracts from its weight.’ ” Beavers v. Secretary of H.E.W., 577 F.2d 383, 387 (6th Cir.1978) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). A social security disability claimant bears the ultimate burden of proof on the issue of disability. Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir.1972); accord Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir.1981) (per curiam). The claimant’s specific burden is to prove that he was disabled on or before the last date on which he met the special earnings requirement imposed by the Social Security Act. See Tremblay" } ]

[ { "docid": "3994899", "title": "", "text": "of armed forces), or other statutes authorizing removal. To the contrary, § 1452 relies on other provisions in Chapter 89, which specify the time and procedure for removal. All § 1452(a) does is describe a class of removable cases; it does not say or imply, for example, that removal may occur without the signed petition required by § 1446(a) or after the time specified by § 1446(b). If § 1452(b) indeed identifies the only basis of remand, and if as Pacor held lack of subject-matter jurisdiction is not an “equitable” ground, then there is no statutory authority to remand cases removed without jurisdiction. They would have to be dismissed outright. If filed again in state court, they could be removed again, followed by dismissal. Defendants could immunize themselves from legal process, a most unlikely outcome of § 1452. The statute authorizing remand for want of jurisdiction is § 1447(c), and § 1447(d) bars review of such remands. Both the Supreme Court, United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982 (1946), and this court, Resolution Trust Corp. v. Lightfoot, 938 F.2d 65 (7th Cir.1991), have held that authorization to remove cases arising out of a particular subject does not imply inapplicability of the general provisions concerning removal. Section 1452 is not an exception to this rule. Compare FSLIC v. Frumenti Development Corp., 857 F.2d 665 (9th Cir.1988) (the FSLIC’s special removal statute, 12 U.S.C. § 1730(k)(1), does not make § 1447(d) inapplicable), and In re FSLIC, 881 F.2d 564 (8th Cir.1989) (same), with In re FSLIC, 837 F.2d 432, 436 (11th Cir.1988) (relying on Pacor). Section 1452(b) independently bars appellate review. Pacor read “equitable” in § 1452(b) to mean not “at law.” Yet the distinction between law and equity was abolished long ago in federal cases. Nothing in the history of the bankruptcy code suggests that Congress wanted to resuscitate it. Courts must separate “legal” from “equitable” grounds in 1789 on command of the seventh amendment. This task has little but the sanction of history to recommend it and is possible only because law versus equity" } ]

[ { "docid": "15385497", "title": "", "text": "1334(b). It also had jurisdiction under § 1334(b) to hear the state law claims because they were related to a Title 11 claim. The parties do, however, dispute the nature and extent of our appellate jurisdiction. Allied Signal claims that we can address this case on direct appeal, while .Breed contends that we must exercise our mandamus powers. Thus, we must first decide the issue of appellate jurisdiction. Although in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Supreme Court held that a remand order is an appealable final order pursuant to 28 U.S.C. § 1291, Breed contends that we lack appellate jurisdiction of the District Court’s remand order because of the bar to appellate review found in both the bankruptcy remand statute, 28 U.S.C. § 1452(b), and the general remand statute, 28 U.S.C. § 1447. The Supreme Court has stated that both § 1452(b) and § 1447(d) are applicable in bankruptcy related cases. In Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), after holding that appellate review of an untimely removal was barred by § 1447(d), the Court went on to comment: There is no express indication in § 1452 that Congress intended that statute to be the exclusive provision governing removals and remands in bankruptcy. Nor is there any reason to infer from § 1447(d) that Congress intended to exclude bankruptcy cases from its coverage. The fact that § 1452 contains its own provision governing certain types of remands in bankruptcy ... does not change our conclusion. There is no reason §§ 1447(d) and 1452 cannot comfortably coexist in the bankruptcy context. We must, therefore, give effect to both. Id. at 129,116 S.Ct. 494. Our task then is to determine whether § 1447(d) or § 1452(b) is applicable to the remand in the present case. The District Court, in ordering remand to the Delaware state court, did not mention which remand statute it was applying. Section 1452(b) provides in pertinent part that: The court to which such claim or cause of action" }, { "docid": "20585063", "title": "", "text": "to the State court from which it was removed is not reviewable on appeal or otherwise.... ” Though § 1447(d) does not explicitly provide an exception, the Supreme Court reasoned that “ ‘§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c)’ ” — lack of subject matter jurisdiction or procedural defects in removal— “ ‘are immune from review under § 1447(d).’ ” Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712 (quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)). Thus, a remand under § 1447 is reviewable if the district court remanded for a reason other than those listed in § 1447(c). Id.; Schexnayder, 394 F.3d at 283. If the statutory bars to review do not apply, a remand order is a final order for the purposes of 28 U.S.C. § 1291. See Quackenbush, 517 U.S. at 713, 116 S.Ct. 1712. Though § 1447(d) is not at issue here, the reasoning in Quackenbush is applicable in this case as well. The district court permissively abstained under § 1334(c)(1) and equitably remanded pursuant to § 1452(b). The district court did not address the related Chapter 15 bankruptcies. Courts may permissively abstain from certain bankruptcy cases “[ejxcept with respect to a case under chapter 15.” 28 U.S.C. § 1334(c)(1) (emphasis added). Defendants base their challenge to the district court’s order on the argument that § 1452 does not apply in this case, rather than on the court’s reasons for remand. We conclude that Defendants’ challenge to the remand order thus falls within an exception to nonreviewability. See Schexnayder, 394 F.3d at 283 (the Fifth Circuit will review a case if based on a ground for remand not contemplated by remand statute); Wilson Indus., 886 F.2d at 95 (holding that an appellate court can review a district court’s decision to remand when that decision rests “upon a ground not authorized by statute”). We therefore recognize a limited exception to the nonreviewability provisions of §§ 1334(c)(1) and 1452(b), but only for cases that" }, { "docid": "4275039", "title": "", "text": "at 345-46, 96 S.Ct. 584 (quoting the “improvident and without jurisdiction” language of a previous version of § 1447(c)). Section 1447(d), the Court concluded, will bar appellate review save when a district court has “not merely erred in applying the requisite provision for remand but has remanded a case on grounds not specified in the statute and not touching .the propriety of the removal.” Id. at 352, 96 S.Ct. 584. In applying this rule, Thermtron held that an appeals court had the authority to review a remand order premised on the district court’s crowded docket (and nothing else), an explanation that had nothing to do with the propriety of the removal or the court’s jurisdiction. See id. at 339, 96 S.Ct. 584. Two decisions of the Court since Therm-tron help to illustrate when remand orders may be reviewed and when they may not be. In Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), the Court held that § 1447(d) barred appellate review of a district court’s remand order on grounds of untimely removal, regardless of whether the action was removed under 28 U.S.C. § 1441(a) (the general removal statute) or 28 U.S.C. § 1452 (the bankruptcy removal statute). “Congress,” the court noted, “has placed broad restrictions on the pow er of federal appellate courts to review district court orders remanding removed cases to state court.” Things Remembered, 516 U.S. at 127, 116 S.Ct. 494. Section 1447(d) thus applies “not only to remand orders made in suits removed under the general removal statute, but to orders of remand made in cases removed under any other statutes, as well.” Id. at 128, 116 S.Ct. 940 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 90 L.Ed. 982 (1946)) (brackets omitted). The following Court Term, in Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Court held that § 1447(d) did not bar appellate review of an abstention-based remand order. The Court reiterated the Thermtron rule and concluded that an “abstention-based remand order does not fall" }, { "docid": "15604288", "title": "", "text": "v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that non-jurisdictional, discretionary remand such as on abstention grounds is not barred from appellate review). The prohibition against appellate review extends “ ‘not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well,’ ” Things Remembered, 516 U.S. at 124, 116 S.Ct. 494 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 90 L.Ed. 982 (1946) (modification and emphasis in original)), unless Congress issues “a clear statutory command to the contrary,” id. This holds true even if the “any other statute” contains an express remand provision of its own. Id. at 129, 116 S.Ct. 494 (holding that remand provision in 28 U.S.C. § 1452(b) applicable to bankruptcy cases does not operate to the exclusion of Sections 1447(c) and (d)). Courts recognize a “strong congressional policy against review of remand orders,” Sykes v. Texas Air Corp., 834 F.2d 488, 490 (5th Cir.1987), grounded in notions of fairness to litigants by curbing the potential for dilatory tactics. The touchstone of the analysis in determining whether Congress intended a remand order to be renewable on appeal is not whether Congress included a separate remand provision in the statute that authorized removal. Rather, we look for Congress’ use of express exclusivity language in that separate remand provision and examine whether Congress fashioned an express statutory exception to the Section 1447(d) bar by preserving appellate review for remand orders issued under that particular statute. See Things Remembered, 516 U.S. at 124, 116 S.Ct. 494. Ultimately, we are aware of only three statutory exceptions to Section 1447(d)’s bar, not one of which is applicable in this case. SLUSA does not constitute a fourth exception. C. SLUSA Remand Orders are Governed by Section IW SLUSA requires a district court to remand an action previously removed under SLUSA’s removal provision, 15 U.S.C. § 78bb(f)(2), if it determines that the state action does not fall within SLUSA’s preemptive scope. See 15 U.S.C." }, { "docid": "15604287", "title": "", "text": "this question, which turns on the interplay between Section 1447(c) and SLUSA’s remand provision, that we now examine. B. The General Remand Statute, 28 U.S.C. § lU7(c) The general remand statute, Section 1447(e), provides, in pertinent part, that “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Section 1447(d) provides that (with the exception of certain civil rights cases), “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ....” 28 U.S.C. § 1447(d). Reading Section 1447(d) in pari materia with Section 1447(c), as we must, see Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995) (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-6, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976)) , Section 1447(d) bars appellate review of remand orders based on any ground recognized in Section 1447(c), such as perceived lack of subject matter jurisdiction, id.; cf. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (holding that non-jurisdictional, discretionary remand such as on abstention grounds is not barred from appellate review). The prohibition against appellate review extends “ ‘not only to remand orders made in suits removed under [the general removal statute], but to orders of remand made in cases removed under any other statutes, as well,’ ” Things Remembered, 516 U.S. at 124, 116 S.Ct. 494 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 90 L.Ed. 982 (1946) (modification and emphasis in original)), unless Congress issues “a clear statutory command to the contrary,” id. This holds true even if the “any other statute” contains an express remand provision of its own. Id. at 129, 116 S.Ct. 494 (holding that remand provision in 28 U.S.C. § 1452(b) applicable to bankruptcy cases does not operate to the exclusion of Sections 1447(c) and (d)). Courts recognize a “strong congressional policy against review of remand orders,” Sykes v. Texas Air Corp., 834 F.2d 488," }, { "docid": "20585061", "title": "", "text": "the district court’s order remanding the case to state court. Ordinarily, we cannot review orders to remand based on §§ 1334 or 1452. See § 1334(d) (“Any decision to abstain or not to abstain made under subsection (c) ... is not reviewable by appeal or otherwise by the court of appeals____”); § 1452(b) (“An order entered under this subsection remanding a claim or cause of action, or a decision to not remand, is not reviewable by appeal or otherwise by the court of appeals____”). We have held that a remand order is unreviewable even if the order “rests on a misinterpretation of the remand statute,” In re Wilson Indus., 886 F.2d 93, 95 (5th Cir.1989), or if the district court’s reasons for the order are incorrect, Sykes v. Tx. Air Corp., 834 F.2d 488, 492-93 (5th Cir.1987) (noting an “absolute bar” against reviewing district court’s decision to remand under § 1452, whether the reasons are equitable or based on a lack of bankruptcy jurisdiction). However, there are limited circumstances under which we may review a remand order. See In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir.1991) (“[Wlhere an exception to non-reviewability exists, an appellate court has jurisdiction to review the remand order....” (quotation marks and citation omitted)). The Supreme Court has held that provisions barring review do not apply if the district court exceeds its statutorily-defined authority to remand. See, e.g., Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (holding that the district judge, who remanded a properly removed case where there was diversity jurisdiction, exceeded statutory authority when he remanded that case based on efficiency). In Quackenbush v. Allstate Insurance Company, the Supreme Court recognized a limited class of situations in which remand orders under the general removal statute, 28 U.S.C. § 1447, are reviewable on appeal. 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir.2004). Like the provisions at issue in this case, § 1447(d) provides that “[a]n order remanding a case" }, { "docid": "18098355", "title": "", "text": "28 U.S.C. § 1447(d). Despite the plain language of the statute and the clear directive it provides to federal appellate courts, the Supreme Court has created a limited class of cases that may be reviewed. The premise of this exception is that, for a remand to be unreviewable,.the district court must act within the authority granted to it by § 1447(c). Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (stating that because § 1447(d) “must be read in pari materia with § 1447(c) ... only remands based on grounds specified in § 1447(c) are immune from review under § 1447(d)”) (citing Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)). Specifically, this Court lacks jurisdiction under § 1447 if the district court based its remand order on either a lack of subject matter jurisdiction or a defect in removal procedure. Quackenbush, 517 U.S. at 712, 116 S.Ct. 1712; see also 28 U.S.C. § 1447(c). The break from its authority must be clear: “we will only review remand orders if the district court affirmatively states a non-1447(c) ground for remand.” Smith v. Tex. Children’s Hosp., 172 F.3d 923, 926 (5th Cir.1999) (quoting In re Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 647 (5th Cir.1978)) (emphasis added and internal quotations omitted); see also Soley v. First Nat’l Bank of Commerce, 923 F.2d 406, 408 (5th Cir.1991). Non-§ 1447(c) grounds for which a district court might remand a case include those remands made for purely discretionary reasons, Giles v. NYLCare Health Plans, 172 F.3d 332, 336 (5th Cir.1999), abstention-based remands, Quackenbush, 517 U.S. at 712, 116 S.Ct. 1712, remands based on § 1367, Smith, 172 F.3d at 926 n. 5, remands based on § 1445(c), In re Excel Corp., 106 F.3d 1197, 1200 (5th Cir.1997), and remands based on the district court’s discretionary powers under § 1441(c), Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 103 (5th Cir.1996), among others, Here, the district court based its remand decision on two factors. Principally, it ruled that Entergy’s" }, { "docid": "15898948", "title": "", "text": "from the district court on which to base jurisdiction under 28 U.S.C. § 1291. We first consider our appellate jurisdiction, an issue made more interesting than normal by some unusual wrinkles in this case. The magistrate judge remanded the ease because of lack of subject matter jurisdiction, and ordinarily such remands are not reviewable on appeal. See 28 U.S.C. § 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Section 1447(d), however, contains an exception to the prohibition on review for cases removed pursuant to § 1443, as this one was. There is therefore no affirmative bar to our review of the remand order. See Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir.1990). The next question is whether there is a final decision on which to base jurisdiction under 28 U.S.C. § 1291. A remand order puts the litigants “ ‘effectively out of court,’ ” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quoting Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 11 n. 11, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), and is reviewable both as a final decision and under the collateral order doctrine, see id. at 712-15, 116 S.Ct. 1712. However, because we conclude the magistrate judge did not have authority to order the remand, the magistrate judge’s, order is not even a “final” remand order. Thus, we must look to the district court’s order denying reconsideration to see whether there is a final decision for jurisdictional purposes. Arguably, an order denying reconsideration of a nonfinal order would not itself be a final order. Cf. Aerosource, Inc. v. Slater, 142 F.3d 572, 579 (3d Cir.1998). Here, however, the sole purpose and effect of the district court’s order was to end the litigation in federal court. In this sense, the court’s denial of reconsideration, which it obviously had jurisdiction to do, was as final a decision as if it had issued the remand order itself. We therefore conclude the court’s order was a final decision for purposes" }, { "docid": "20585062", "title": "", "text": "remand order. See In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir.1991) (“[Wlhere an exception to non-reviewability exists, an appellate court has jurisdiction to review the remand order....” (quotation marks and citation omitted)). The Supreme Court has held that provisions barring review do not apply if the district court exceeds its statutorily-defined authority to remand. See, e.g., Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976) (holding that the district judge, who remanded a properly removed case where there was diversity jurisdiction, exceeded statutory authority when he remanded that case based on efficiency). In Quackenbush v. Allstate Insurance Company, the Supreme Court recognized a limited class of situations in which remand orders under the general removal statute, 28 U.S.C. § 1447, are reviewable on appeal. 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996); see also Schexnayder v. Entergy La., Inc., 394 F.3d 280, 283 (5th Cir.2004). Like the provisions at issue in this case, § 1447(d) provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.... ” Though § 1447(d) does not explicitly provide an exception, the Supreme Court reasoned that “ ‘§ 1447(d) must be read in pari materia with § 1447(c), so that only remands based on grounds specified in § 1447(c)’ ” — lack of subject matter jurisdiction or procedural defects in removal— “ ‘are immune from review under § 1447(d).’ ” Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712 (quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995)). Thus, a remand under § 1447 is reviewable if the district court remanded for a reason other than those listed in § 1447(c). Id.; Schexnayder, 394 F.3d at 283. If the statutory bars to review do not apply, a remand order is a final order for the purposes of 28 U.S.C. § 1291. See Quackenbush, 517 U.S. at 713, 116 S.Ct. 1712. Though § 1447(d) is not at issue here, the reasoning in Quackenbush is" }, { "docid": "20585073", "title": "", "text": "the case to the federal district court for proceedings consistent with this opinion. . Although no Defendant is a Louisiana entity or person, the addition of Skadden defeated diversity jurisdiction because Skadden, a partnership whose members include U.S. citizens domiciled abroad, is stateless for the purposes of diversity jurisdiction. Coury v. Prot, 85 F.3d 244, 249-50 (5th Cir.1996) (U.S. citizens domiciled abroad are not diverse); Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.2008) (citizenship of partnership determined by citizenship of members). . Plaintiffs moved to dismiss this appeal for lack of appellate jurisdiction. The motions panel denied the motion. The motions panel's denial of the motion to dismiss the appeal does not bind the oral argument panel. See Newby v. Enron Corp., 443 F.3d 416, 419 (5th Cir.2006) (citing In re Grand Jury Subpoena, 190 F.3d 375, 378 n. 6 (5th Cir.1999)). . The Supreme Court overruled Thermtron only to the extent Thenntron stands for the proposition that an order of remand is not a final order under 28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). . In Things Remembered, the Supreme Court held that § 1447(d) may bar review of remands in cases where removal was based on § 1452. 516 U.S. at 129, 116 S.Ct. 940 (\"If an order remands a bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, then a court of appeals lacks jurisdiction- to review that order under § 1447(d), regardless of whether the case was removed under ... § 1452(a).”). The remand in this case was not based on a lack of subject matter jurisdiction or a defect in removal procedure, but rather permissive abstention based upon equity. Thus, § 1447(d) does not bar review here. See Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712; see also In re Campos, 234 F.3d 705, 2000 WL 1598002, at *2 n. 5 (5th Cir.2000) (unpublished) (\"Since this remand order was premised on the bankruptcy court’s ‘equitable’ powers, §" }, { "docid": "496202", "title": "", "text": "Reifer objected and Westport responded. On May 1, 2012, the District Court sua sponte declined to exercise jurisdiction over the matter. Reifer, 943 F.Supp.2d at 508. It rejected the Magistrate’s report and recommendation, dismissed the case without prejudice, and remanded it to the Court of Common Pleas of Lackawanna County, Pennsylvania. Id. Westport filed a Motion for Reconsideration, which the District Court denied. Reifer, 2013 WL 2650275, at *1. Westport appeals both decisions. II. JURISDICTION The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a). Although it is uncontested by the parties, we have an independent obligation to assure ourselves of our jurisdiction. E.g., Kendall v. Daily News Publ’g Co., 716 F.3d 82, 86 (3d Cir.2013). We have jurisdiction to review “final decisions” of district courts under 28 U.S.C. § 1291. Whether a district court’s discretionary remand under the DJA is an appealable “final decision” under § 1291 is a matter of first impression. We believe that a remand order entered pursuant to the DJA is an appealable final decision because it is functionally indistinguishable from the remand order found appealable in Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 713-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). See Snodgrass v. Provident Life & Accident Ins. Co., 147 F.3d 1163, 1165-66 (9th Cir.1998). As a threshold matter, we note that a remand under the DJA implicates neither a lack of subject matter jurisdiction nor a defect in removal procedure. Thus, 28 U.S.C. § 1447(d) does not preclude our review. See Quackenbush, 517 U.S. at 712, 116 S.Ct. 1712 (holding that, because § 1447(d) must be read in pari materia with § 1447(c), its proscription against appellate review is limited to those circumstances implicated by § 1447(c)); see also In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.1998). In Quackenbush, the Supreme Court held that an appeal is the appropriate procedural mechanism to review a remand order made pursuant to Burford abstention where the circumstances satisfy either of the alternate holdings of Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d" }, { "docid": "4275040", "title": "", "text": "on grounds of untimely removal, regardless of whether the action was removed under 28 U.S.C. § 1441(a) (the general removal statute) or 28 U.S.C. § 1452 (the bankruptcy removal statute). “Congress,” the court noted, “has placed broad restrictions on the pow er of federal appellate courts to review district court orders remanding removed cases to state court.” Things Remembered, 516 U.S. at 127, 116 S.Ct. 494. Section 1447(d) thus applies “not only to remand orders made in suits removed under the general removal statute, but to orders of remand made in cases removed under any other statutes, as well.” Id. at 128, 116 S.Ct. 940 (quoting United States v. Rice, 327 U.S. 742, 752, 66 S.Ct. 835, 90 L.Ed. 982 (1946)) (brackets omitted). The following Court Term, in Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Court held that § 1447(d) did not bar appellate review of an abstention-based remand order. The Court reiterated the Thermtron rule and concluded that an “abstention-based remand order does not fall into either category of remand order described in § 1447(c), as it is not based on lack of subject matter jurisdiction or defects in removal procedure.” Id. at 712, 116 S.Ct. 1712. A third decision, Carnegie-Mellon University v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), bears tangentially on our resolution of this case as well — although Cohill is explicitly not about our appellate jurisdiction under § 1447(d) but rather about a district court’s remand power under § 1447(c), see Things Remembered, 516 U.S. at 130, 116 S.Ct. 494 (Kennedy and Ginsburg, JJ., concurring) (“We did not find it necessary [in Cohill ] to decide whether subsection (d) would bar review of a remand ... for we affirmed the denial of mandamus by the Court of Appeals.”). In Cohill, the Court considered whether “a federal district court has discretion under the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law claims in the action have been eliminated and only pendent state-law claims remain.” 484" }, { "docid": "6738169", "title": "", "text": "appeals ... or by the Supreme Court.” Read literally this language denies us jurisdiction to review the orders remanding the four cases to state court regardless of the basis of the orders or the grounds for challenging them. But we do not think the literal reading can be correct in light of Quackenbush v. Allstate Ins. Co., — U.S. -, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). The Supreme Court held there, albeit in the context of a different statute restricting appellate review of remands (28 U.S.C. § 1447(d)), that a statute which authorizes a remand on specified grounds and goes on to provide that remands under the statute are not reviewable bars review only of a remand based on one of those grounds. If the judge remands the case on a different ground, his action is reviewable. — U.S. at -, 116 S.Ct. at 1718. In this case, however, the bankruptcy judge remanded on a stated ground, indeed the only stated ground in section 1452(b)— “any equitable ground,” which means simply any appropriate ground. Hernandez v. Brakegate, Ltd., 942 F.2d 1223, 1226 (7th Cir.1991); In re Cathedral of the Incarnation, 90 F.3d 28, 32-33 (2d Cir.1996); Things Remembered, Inc. v. Petrarca, — U.S. -, -, 116 S.Ct. 494, 499-501, 133 L.Ed.2d 461 (1995) (concurring opinion). He relied specifically on 28 U.S.C. § 1334(c), which authorizes (and in some cases requires) district courts to abstain in favor of state courts in some bankruptcy cases. El-jer doesn’t think these four cases fall within the scope of section 1334(c) — thinks in other words that the judge erred — but that is precisely the type of error that cannot be reviewed. Hernandez v. Brakegate, Ltd., supra, 942 F.2d at 1226; In re Cathedral of the Incarnation, supra, 90 F.3d at 32-33; In re Conejo Enterprises, Inc., 96 F.3d 346, 350-51 (9th Cir.1996). It does not help Eljer that it bases its claim of error not only on the bankruptcy judge’s having supposedly misinterpreted or misapplied section 1334(c) but also on his having (Eljer thinks) neglected two distinct and independent limitations on his" }, { "docid": "7711790", "title": "", "text": "articulated in Things Remembered, both in the Supreme Court and in the courts of appeals, provides significant guidance to the analysis of this case. In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court held that § 1447(d) did not bar appellate review of a district court’s remand order that was based on the court’s overburdened docket. See Thermtron, 423 U.S. at 345, 96 S.Ct. 584. The Court traced the history of § 1447(d) and concluded that Congress had intended to link § 1447(d) with § 1447(c). See id. at 346-51, 96 S.Ct. 584. After doing so, the Court concluded that “[t]here is no indication whatsoever that Congress intended to extend the prohibition against review to reach remand orders entered on grounds not provided by statute.” Id. at 350, 96 S.Ct. 584. Thus, “[sjection 1447(d) is not dispositive of the reviewability of remand orders in and of itself.” Id. at 345, 96 S.Ct. 584. Appellate jurisdiction is proper when “the District Court’s order was based on grounds wholly different from those upon which § 1447(c) permits remand.” Id. at 344, 96 S.Ct. 584. In Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Supreme Court concluded that appellate jurisdiction was proper over an abstention-based remand order. The district court in Quackenbush had decided that abstention under the Burford doctrine was appropriate to prevent federal interference with the state’s regulation of an insurance company’s insolvency; the district court remanded the properly-removed action to state court on that ground. See Quackenbush, 517 U.S. at 709-10, 116 S.Ct. 1712. The Supreme Court disposed of the § 1447(d) argument, noting that “[t]he District Court’s abstention-based remand order does not fall into either category of remand order described in § 1447(c), as it is not based on lack of subject matter jurisdiction or defects in removal procedure.” Id. at 712, 116 S.Ct. 1712. The courts of appeals have elaborated on the rule announced in Thermtron. For instance, in Benson v. SI Handling Systems, Inc., 188 F.3d 780, 782" }, { "docid": "18045059", "title": "", "text": "Neither argument carries the day but jurisdiction lies nonetheless. Section 1447(d) generally provides that “[a]n order remanding a case to the State court from which it 'was removed is not reviewable on appeal or otherwise.” Despite this broadly worded prohibition, the Supreme Court has held that § 1447(d) only bars appellate review of a district court’s remand order that is “based on a ground specified in [28 U.S.C.] § 1447(c).” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638, 129 S.Ct. 1862, 173 L.Ed.2d 843 (2009). This means that “remand orders based on a procedural defect or lack of subject matter jurisdiction are unreviewable.” Carlson v. Arrowhead Concrete Works, Inc., 445 F.3d 1046, 1050 (8th Cir.2006). A remand order that is based on some other, non-section 1447(c) ground is a final decision appealable under 28 U.S.C. § 1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713, 715, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). The district court remanded this matter, in part, based upon its interpretation of the local controversy exception in CAFA, which operates as an abstention doctrine and does not divest the district court- of subject matter jurisdiction. Graphic Commc’ns Local 1B v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir.2011). “The local controversy provision, which is set apart from the ... jurisdictional requirements in the statute, inherently recognizes the district court has subject matter jurisdiction by directing the court to ‘decline to exercise’ such jurisdiction when certain requirements are met.” Id. Accordingly, § 1447(d) interposes no bar to appellate review and the order is final and appealable as a collateral order under § 1291 on that issue. Quackenbush, 517 U.S. at 711-14, 116 S.Ct. 1712. In light of this § 1447(d) jurisprudence, however, we do lack jurisdiction to review the district court’s determination concerning the availability of federal common law to resolve this suit, given the above analysis regarding § 1447(d), as it is a remand based upon the court’s determination that it lacked subject matter jurisdiction. Nonetheless, we retain jurisdiction to review the district court’s remand on the issue of whether" }, { "docid": "20585074", "title": "", "text": "1291. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). . In Things Remembered, the Supreme Court held that § 1447(d) may bar review of remands in cases where removal was based on § 1452. 516 U.S. at 129, 116 S.Ct. 940 (\"If an order remands a bankruptcy case to state court because of a timely raised defect in removal procedure or lack of subject-matter jurisdiction, then a court of appeals lacks jurisdiction- to review that order under § 1447(d), regardless of whether the case was removed under ... § 1452(a).”). The remand in this case was not based on a lack of subject matter jurisdiction or a defect in removal procedure, but rather permissive abstention based upon equity. Thus, § 1447(d) does not bar review here. See Quackenbush, 517 U.S. at 711-12, 116 S.Ct. 1712; see also In re Campos, 234 F.3d 705, 2000 WL 1598002, at *2 n. 5 (5th Cir.2000) (unpublished) (\"Since this remand order was premised on the bankruptcy court’s ‘equitable’ powers, § 1447(d) does not forbid appellate review.”). . As discussed in the following section, we also hold that § 1334(c)(l)’s exception for Chapter 15 cases applies to a Chapter 15 case itself as well as proceedings arising in and related to a Chapter 15 case. . Our decision therefore does not conflict with cases predating the 2005 amendments in which the Seventh and Second Circuits held that abstention-related equitable remands were not reviewable. See In re U.S. Brass Corp., 110 F.3d 1261, 1265-66 (7th Cir.1997); Cathedral of Incarnation in Diocese of Long Island v. Garden City Co. (In re Cathedral of Incarnation in Diocese of Long Island), 90 F.3d 28, 32-33 (2d Cir.1996). . In their appellate brief, Plaintiffs do not challenge Defendants’ claim that the Chapter 15 bankruptcies are related to this case, and we conclude that the two are related. In concluding that the Chapter 11 bankruptcy was related to this case, the magistrate’s report emphasized Plaintiffs' allegations that the Chapter 11 debtor was an alter ego of several defendants in this case and" }, { "docid": "3818708", "title": "", "text": "of civil rights cases” and applied only in cases involving racial inequality. The defendants moved for reconsideration, arguing that the district court exceeded its authority in remanding, because (1) the basis for removal was section 1441, not section 1443; (2) the court had original jurisdiction over the section 1983 claims; and (3) there were no defects in the removal procedure. The district court denied the motion. The defendants appeal. II. DISCUSSION Initially, we acknowledge that 28 U.S.C. § 1447(d) states that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” The Supreme Court, however, has clarified that section 1447(d) bars appellate review only if the district court remands on the grounds articulated in section 1447(c), i.e., for lack of subject matter jurisdiction or defects in the removal procedure. See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996). Here, the district court stated that it remanded this case in its discretion, rather than for a reason listed in section 1447(c). We are therefore not barred by section 1447(d) from reviewing the district court’s decision to remand. Furthermore, though a remand order is not formally a final judgment, it is reviewable on appeal to the extent that it “conclusively determine[s] -a disputed question that is completely separate from the merits of the action, [is] effectively unreviewable on appeal from a final judgment ... and [is] too important to be denied review.” Quackenbush, 116 S.Ct. at 1718-19 (citations omitted). We are presented with such a situation. The remand order issued by the district court effectively “surrender[s] jurisdiction to the state court, and [the defendants]- have no other opportunity to appeal that decision in a federal court.” Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir.1996) (applying Quackenbush). Accordingly, our review of the district court’s remand order is proper. We agree with the defendants that the applicable statute governing removal of this case is 28 U.S.C.. § 1441. This case-is properly removed pursuant to either subsection (a) or subsection" }, { "docid": "12220446", "title": "", "text": "the district court clerk to mail a certified copy of the remand order to the state court clerk pursuant to 28 U.S.C. § 1447(c). R. 40 at 2. Ball then timely filed her notice of appeal, seeking review of the court’s prior decision disposing of most of her federal and state claims. R. 43. II. As in any case, our first task is to consider whether we have jurisdiction over the appeal. E.g., Anderson v. Catholic Bishop of Chicago, 759 F.3d 645, 648-49, 2014 WL 2959129, at *2 (7th Cir. July 2, 2014). Pursuant to 28 U.S.C. § 1291, we have jurisdiction to review a final decision of the district court. Ball’s notice of appeal reflects her intent to appeal the district court’s order on the motions to dis miss and for judgment on the pleadings, which she asserts became final once the court allowed the amendment of her complaint to pursue only a state-law claim against Jones and then remanded the case to state court. See, e.g., Am. Nat’l Bank & Trust Co. of Chicago v. Equitable Life. Assur. Soc. of U.S., 406 F.3d 867, 876 (7th Cir.2005) (“An appeal of a final decision ‘brings up’ for review all interlocutory decisions of the district court that were adverse to the appellant and that have not become moot.”) (collecting cases). The defendants contend that we lack appellate jurisdiction in view of 28 U.S.C. § 1447(d), which in relevant part provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise .... ” As currently understood by the Supreme Court, however, this bar to review applies only to cases which were remanded pursuant to section 1447(c) because they were improperly removed to federal court in the first instance. Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 497, 133 L.Ed.2d 461 (1995) (“[OJnly remands based on grounds specified in § 1447(c) are immune from review under § 1447(d).”); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1" }, { "docid": "15385496", "title": "", "text": "it on January 8, 2001, asking us to reverse the District Court’s remand order and to order the District Court to exercise its jurisdiction. Breed then filed a petition for mandamus with us. Breed sought a writ, vacating the order remanding the case to the Delaware Superior Court, and directing the District Court to remand the case to the Circuit Court for Polk County, Florida. Breed filed a cross-appeal on February 5, 2001. II. Standard of Review Our review of the jurisdictional questions is plenary. See 718 Arch St. Assocs. Ltd. v. Blatstein (In re Blatstein), 192 F.3d 88, 94 (3d Cir.1999); Anthuis v. Colt Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir.1992). Whether a writ of mandamus should be issued is committed to our discretion. In re Sharon Steel Corp., 918 F.2d 434, 436 (3d Cir.1990). III. Jurisdiction The first issue we must address is our own jurisdiction to hear this case. There is no dispute that the District Court had bankruptcy jurisdiction over Breed’s Title 11 claims pursuant to 28 U.S.C. § 1334(b). It also had jurisdiction under § 1334(b) to hear the state law claims because they were related to a Title 11 claim. The parties do, however, dispute the nature and extent of our appellate jurisdiction. Allied Signal claims that we can address this case on direct appeal, while .Breed contends that we must exercise our mandamus powers. Thus, we must first decide the issue of appellate jurisdiction. Although in Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996), the Supreme Court held that a remand order is an appealable final order pursuant to 28 U.S.C. § 1291, Breed contends that we lack appellate jurisdiction of the District Court’s remand order because of the bar to appellate review found in both the bankruptcy remand statute, 28 U.S.C. § 1452(b), and the general remand statute, 28 U.S.C. § 1447. The Supreme Court has stated that both § 1452(b) and § 1447(d) are applicable in bankruptcy related cases. In Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 116 S.Ct. 494," }, { "docid": "13805676", "title": "", "text": "the instant one that is originated by a petition for an extraordinary writ”) (citing Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977)). Accord New v. Sports & Recreation, Inc., 114 F.3d 1092, 1095-96 (11th Cir.1997) (finding no jurisdiction in light of § 1447(d) to consider appeal or petition for mandamus with respect to remand order); Flores v. Long, 110 F.3d 730, 733 (10th Cir.1997) (same); Gonzalez-Garcia v. Williamson Dickie Mfg. Co., 99 F.3d 490, 492 (1st Cir.1996) (per curiam) (holding that § 1447(d) precludes mandamus review); In re Bus. Men’s Assurance Co. of Am., 992 F.2d 181, 182-83 (8th Cir.1993) (per curiam) (same). However, it is not as obvious that § 1452(b) prohibits review by mandamus. The language of that section provides that “[a]n order entered under this subsection remanding a claim or cause of action ... is not reviewable by appeal or otherwise by the court of appeals under section 158(d), 1291, or 1292 of this title.” 28 U.S.C. § 1452(b) (emphasis added). On the one hand, the Friction Product Plaintiffs plausibly argue that the “or otherwise” language must refer to mandamus review. To read § 1452(b) as allowing for mandamus review renders the “or otherwise” language meaningless, in violation of the canon against surplusage. On the other hand, as the Friction Product Defendants argue, the statute enumerates the statutory sections that cannot be used to review remands and fails to mention 28 U.S.C. § 1651(a) (the All Writs Act). They construe this omission as permitting writs of mandamus. This is a plausible application of the expressio unius est ex-clusio alterius (inclusion of one thing indicates exclusion of the other) canon of statutory interpretation. In discussing whether remand decisions are subject to mandamus review, the Seventh Circuit, in In re U.S. Brass Corp., 110 F.3d 1261 (7th Cir.1997), held that “section 1452(b) bars review by appeal or otherwise, which would seem to take in mandamus, which anyway is available only when the applicant’s right to it is clear.” Id. at 1266 (emphasis in original) (citations omitted). The legislative history is somewhat" } ]

[ { "docid": "22657267", "title": "", "text": "a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice or judge from imposing additional requirements, and one such additional requirement has been approved by this Court. See Slack v. McDaniel, 529 U. S. 473, 484 (2000) (holding that a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling). The Court today imposes another additional requirement: A circuit justice or judge must deny a COA, even when the habeas petitioner has made a substantial showing that his constitutional rights were violated, if all reasonable jurists would conclude that a substantive provision of the federal habeas statute bars relief. Ante, at 336. To give an example, suppose a state prisoner presents a constitutional claim that reasonable jurists might find debatable, but is unable to find any “clearly established” Supreme Court precedent in support of that claim (which was previously rejected on the merits in state-court proceedings). Under the Court’s view, a COA must be denied, even if the habeas petitioner satisfies the “substantial showing of the denial of a constitutional right” requirement of § 2263(c)(2), because all reasonable jurists would agree that habeas relief is impossible to obtain under § 2254(d). This approach is consonant with Slack, in accord with the COA’s purpose of preventing meritless ha-beas appeals, and compatible with the text of § 2253(c), which does not make the “substantial showing of the denial of a constitutional right” a sufficient condition for a COA. II In applying the Court’s COA standard to petitioner’s case, we must ask whether petitioner has made a substantial showing of a Batson violation and also whether reasonable jurists could debate petitioner’s ability to obtain habeas relief in light of" } ]

[ { "docid": "7870290", "title": "", "text": "1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; cf. Miller-El, 123 S.Ct. at 1046 (Scalia, J., concurring) (noting that “a habeas petitioner seeking to appeal a district court’s denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”). The Supreme Court has stated that “[t]his construction [of the standard applicable when the district court rejects a claim on procedural grounds] gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial" }, { "docid": "21868709", "title": "", "text": "that he had motioned to his pocket when he was in the store, the jury could also reasonably infer that the gun was physically available and accessible to him during the in-store robbery. In short, viewing all the testimony in the light most favorable to the prosecution, the court concludes that the Delaware Supreme Court did not unreasonably apply Jackson in finding sufficient evidence to sustain petitioner’s weapons conviction. Thus, this claim does not warrant habeas relief under § 2254(d)(1). Y. CERTIFICATE OF APPEALABILITY Finally, the court must decide whether to issue a certificate of appealability. See Third Circuit Local Appellate Rule 22.2. The court may issue a certificate of appeal-ability only when a petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing is satisfied when the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the denial of a constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. For the reasons stated above, the court concludes that petitioner is not entitled to federal habeas relief for any of his claims. Reasonable jurists would not find these conclusions unreasonable. Consequently, petitioner has failed to make a substantial showing of the denial of a constitutional right, and a certificate of appealability will not be issued. VI. CONCLUSION For the foregoing reasons, petitioner’s application for habeas relief filed pursuant to 28 U.S.C. § 2254 will be denied. An appropriate order will be entered. ORDER For the reasons set forth in the memorandum opinion issued this date, IT IS HEREBY ORDERED that: 1. Petitioner Claude A. Jones’ application for a writ of habeas corpus pursuant to 28" }, { "docid": "18128604", "title": "", "text": "and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996) (quoting 28 U.S.C. § 2255). The Court finds the record in this case conclusively shows that the defendant is not entitled to relief, and thus, will dismiss the motion without a hearing. III. CERTIFICATE OF APPEALA-BILITY A petitioner must obtain a certifícate of appealability (“COA”) before pursuing any appeal from a final order in a § 2255 proceeding. See 28 U.S.C. § 2253(c)(1)(B). When the denial of a § 2255 motion is based on the merits of the claims in the motion, a district court should issue a certificate of appealability only when the appeal presents a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, the Supreme Court stated that when a district court rejects the constitutional claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because the defendant has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not find the Court’s assessments of his constitutional claims debatable or wrong, the Court declines to issue a certificate of appealability. IV. CONCLUSION Because the defendant was lawfully arrested on May 12, 2008, the Court concludes that Ms. Shaner’s failure to file a motion to quash the indictment or a motion to suppress evidence resulted in no prejudice to defendant’s case. Thus, defendant’s Motion must be denied. A separate Order consistent with this Memorandum Opinion shall issue this date. . The government inconsistently identified the FBI Agent who spoke with the tipster on May 12, 2008. Compare Opp'n 16 (\"citizen contacted Agent DeJesus\"), with id. at 25 (\"citizen contacted that FBI agent”), and DeJesus Aff. ¶ 13, ECF No. 1-1 (\"citizen contacted the FBI agent”). Special Agent DeJesus testified that his affidavit was true and accurate" }, { "docid": "20905966", "title": "", "text": "standard that should be applied to the COA requirement under the current section 2253 and its requirement that a COA only issue upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts of appeals that have articulated standards for issuance of a COA in this context have generally drawn from the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). United States v. Arrington, 763 F.3d 17, 23 (D.C.Cir.2014); Spitznas, 464 F.3d at 1225; Reid, 369 F.3d at 371; Gonzalez, 366 F.3d at 1267. In Slack, the Court determined the standard governing issuance of a COA when the district court denies a habeas petition on procedural grounds. The Court articulated a two part standard: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. The Court held that this test “gives meaning to Congress’s requirement that a prisoner demonstrate substantial underlying constitutional claims and is in conformity with the meaning of the ‘substantial showing’ standard provided in Barefoot ... and adopted by Congress in AEDPA.” Id. The substantial showing standard is met when “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. at 484, 120 S.Ct. 1595 (citation and internal quotation marks omitted). Similarly, we hold that a COA should only issue for the appeal arising from the denial of a Rule 60(b) motion in a section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion and" }, { "docid": "11165303", "title": "", "text": "court’s decision without a COA. Miller-El, 537 U.S. at 335-36, 123 S.Ct. 1029; Lockett, 711 F.3d at 1249. The district court dismissed each of these claims on procedural grounds and refused to grant a COA for any of them. Although Mr. Frost does not explicitly seek a COA, we construe his filing of a notice of appeal as a request for a COA. See Fed. R.App. P. 22(b)(2) (“If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.”); see also United States v. Gordon, 172 F.3d 753, 753-54 (10th Cir.1999) (citing Fed. R.App. P. 22(b)(2)). 1. Standard for Granting COA Under AEDPA, we may not issue a COA unless “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253; see also Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). When a district court dismisses a petition on procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA cannot issue unless the petitioner shows both (1) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right” and (2) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; accord Dulworth v. Jones, 496 F.3d 1133, 1137 (10th Cir.2007). Rather than addressing these two threshold re quirements in order, we may “resolve the issue whose answer is more apparent from the record and arguments.” Slack, 529 U.S. at 485, 120 S.Ct. 1595. 2. Legal Background a. Exhaustion and anticipatory procedural bar A federal court cannot grant a state prisoner’s habeas petition unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1). Relevant here, a state prisoner must give state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct." }, { "docid": "15107164", "title": "", "text": "Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Johnny William Cooper, Jr., seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(d)(3) motion seeking relief from the district court’s order denying Cooper’s 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Cooper has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED" }, { "docid": "7599260", "title": "", "text": "we held that these claims were not procedurally defaulted. While we are generally not in the business of reversing certificates of appealability, see Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir.2001), it bears repeating what is required before one can be issued. To obtain a COA on an issue, a petitioner must show that “reasonable jurists would find the district court’s assessment of the constitutional claim[ ] debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This inquiry is straightforward when a district court denies a constitutional claim on the merits. But where the district court denies an issue on procedural grounds without evaluating the merits of the underlying constitutional claim, courts should grant a COA only if two requirements are satisfied. See Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). First, the court must determine that reasonable jurists would find the district court’s procedural assessment debatable or wrong. Id. at 484, 120 S.Ct. 1595. Second, the court must determine that reasonable jurists would find it debatable or obvious that the petitioner states a valid underlying constitutional claim on the merits. Id. If the petitioner cannot make both of these showings, assessed in whatever order, then a court should not grant a COA on the procedural issue. Id. This framework faithfully applies the text of 28 U.S.C. § 2253 — requiring “a substantial showing of the denial of a constitutional right” before courts may grant a COA — while not making procedural rulings unreviewable. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. By contrast, it does violence to the text of § 2253-a jurisdictional statute, see Hill v. Mitchell, 400 F.3d 308, 329 (6th Cir.2005) — when courts grant COAs without assessing the debatability of the underlying merits. IV. For these reasons, we affirm." }, { "docid": "23657085", "title": "", "text": "in both habeas corpus proceedings and other contexts”). We begin our discussion by setting forth the limited circumstance under which a court may issue a COA. The right to appeal is governed by the COA requirements set forth in 28 U.S.C. § 2253(c): (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 28 U.S.C. § 2253(c). Under this limited provision, if a district court denies a habeas petition on procedural grounds without reaching the petitioner’s underlying constitutional claims, a COA should issue only if the petitioner shows “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 1601, 146 L.Ed.2d 542 (2000). “[B]oth showings [must] be made before the court of appeals may entertain the appeal.” Id. at 485, 120 S.Ct. at 1604. If the procedural bar is obvious and the district court correctly invoked it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. at 484, 120 S.Ct. at 1604. The court may first resolve the issue whose answer is more apparent from the record and the arguments. Id. at 485, 120 S.Ct. at 1604. “The recognition that the court will not pass upon a constitutional question" }, { "docid": "22976813", "title": "", "text": "and entered a final judgment, denying Dowthitt habeas relief on all claims, dismissing his case with prejudice, and denying Dowthitt’s request for a COA. After .the district court denied his Rule 59(e) motion, Dowthitt timely appealed to this court, requesting a COA and reversal of the district court’s judgment denying habeas relief. II. DISCUSSION Because Dowthitt’s petition for federal habeas relief was filed after April 24, 1997, this appeal is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (“Petitioners whose convictions became final before the effective date of the AEDPA were given a grace period of one year to file their federal habeas petitions, rendering them timely if filed by April 24, 1997.”). Under AED-PA, a petitioner must first obtain a COA in order for an appellate court to review a district court’s denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A). 28 U.S.C. § 2253(c)(2) mandates that a COA will not issue unless the petitioner makes “a substantial showing of the denial of a constitutional right.” This standard “includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (internal quotations and citations omitted); see also Hill v. Johnson, 210 F.3d 481, 484 (5th Cir.2000). The formulation of the COA test is dependent upon whether the district court dismisses the petitioner’s claim on constitutional or procedural grounds. If the district court rejects the constitutional claims on the merits, the petitioner “must demonstrate that reasonable jurists' would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 120 S.Ct. at 1604. On the other hand, [w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason" }, { "docid": "2875794", "title": "", "text": "action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the con stitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certifícate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the Court agrees with and adopts the Magistrate Judge’s decision to sua sponte recognize and enforce the default of Petitioner’s first ground for relief, and because the Court views as a “close call” whether the dismissal of prospective juror Wells was proper under Wainwright v. Witt, 469 U.S. at 424,105 S.Ct. 844, even though the Court was prevented by the procedural default from addressing the merits of the claim, the Court is satisfied that reasonable jurists could find debatable" }, { "docid": "23442042", "title": "", "text": "court’s decision to deny his “Motion for Leave to File a Second Amended Petition for Writ of Habeas Corpus.” As explained below, we treat Murray’s uncertified claim as a motion to expand the certificate of appealability (“COA”) that we previously granted. Under Federal Rule of Appellate Procedure 22(b)(2), a notice of appeal constitutes an application for a COA. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Thus, where “a motions panel grants a COA in part and denies a COA in part,” “[uncerti-fied issues raised and designated in [the manner prescribed by Ninth Circuit Rule 22-1] will be construed as a motion to expand the COA and will be addressed by [us] to such extent as [we] deem[ ] appropriate.” 9th Cir. R. 22-1(d)-(e). A COA may issue in federal habe-as review of state proceedings “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Wilson v. Belleque, 554 F.3d 816, 825-26 (9th Cir.2009). This is not an exacting standard. Id. at 826. We will “not decline the application for a COA merely because [we] believe[ ] the applicant will not [ultimately] demonstrate an entitlement to relief.” Miller-El, 537 U.S. at 337, 123 S.Ct. 1029. Rather, we will issue a COA “if jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Wilson, 554 F.3d at 826. If, however, the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when ... jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not[, however,] conclude" }, { "docid": "22571850", "title": "", "text": "Allen asserted these as separate claims for relief in his second habeas petition and supporting memorandum of points and authorities filed in the district court. In addition, Allen specifically relied upon Lackey in the district court. Justice Stevens’ concurrence in Lackey makes no reference to age or infirmity, but only to tenure. Because each claim now occupies a distinct procedural sphere, we analyze them independently from that perspective as well. II. CERTIFICATE OF APPEALABILITY ON ALLEN’S AGE AND PHYSICAL INFIRMITY CLAIM Having been denied a certificate of appealability on his age and physical infirmity claim by the district court, Allen asks us to certify this claim, as he must secure a certificate of appealability before he can proceed with the merits of his claims. See 28 U.S.C. § 2253(c)(1); 9th Cir. R. 22-1; see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). A petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a certificate of appeal-ability. 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595; see also Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To meet this “threshold inquiry,” Slack, 529 U.S. at 482, 120 S.Ct. 1595, the petitioner “ ‘must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.’ ” Lam-bright, 220 F.3d at 1025(alteration and emphasis in original) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). Even if a question is well settled in our circuit, a constitutional claim is debatable if another circuit has issued a conflicting ruling. See id. at 1025-26. “[T]he showing a petitioner must make to be heard on appeal is less" }, { "docid": "19629239", "title": "", "text": "C. Walker as amicus curiae in support of the judgment of the Court of Appeals. She has ably discharged her responsibilities. III A This case comes to the Court in a somewhat unusual procedural posture. Under the Antiterrorism and Effective Death Penalty Act of 1996, there can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue \"only if the applicant has made a substantial showing of the denial of a constitutional right.\" § 2253(c)(2). That standard is met when \"reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.\" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Obtaining a certificate of appealability \"does not require a showing that the appeal will succeed,\" and \"a court of appeals should not decline the application ... merely because it believes the applicant will not demonstrate an entitlement to relief.\" Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The decision under review here is the single-judge order in which the Court of Appeals denied Welch a certificate of appealability. Under the standard described above, that order determined not only that Welch had failed to show any entitlement to relief but also that reasonable jurists would consider that conclusion to be beyond all debate. See Slack, supra, at 484, 120 S.Ct. 1595. The narrow question here is whether the Court of Appeals erred in making that determination. That narrow question, however, implicates a broader legal issue: whether Johnson is a substantive decision with retroactive effect in cases (like Welch's) on collateral review. If so, then on the present record reasonable jurists could at least debate whether Welch should obtain relief in his collateral challenge to his sentence. On these premises, the Court now proceeds to decide whether Johnson is retroactive. B The normal framework for determining whether a new rule applies to cases on collateral review stems from" }, { "docid": "7870289", "title": "", "text": "(Michie 2000) (vesting exclusive jurisdiction in the Supreme Court of Virginia of petitions for writs of habeas corpus by petitioners held under a sentence of death), and was denied relief. Thereafter, he filed a petition pursuant to 28 U.S.C.A. § 2254 in the United States District Court for the Western District of Virginia. On March 28, 2002, the district court denied relief on that petition. Swisher seeks a COA as to numerous claims raised in the district court. We address the following three claims below: (1) that the Commonwealth knowingly elicited perjurious testimony; (2) that Swisher received ineffective assistance of counsel; and (3) that the Commonwealth failed to turn over Brady material. II. We may only issue a COA if Swisher has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.A. § 2253(c)(2) (West Supp.2002). Absent a COA, “an appeal may not be taken” to this court from the district court’s denial of relief on the § 2254 petition. Id. § 2253(c)(1); cf. Miller-El v. Cockrell, - U.S. -, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (noting that a COA is “a jurisdictional prerequisite” to consideration of an appeal by a prisoner denied habeas relief in the district court). To make the requisite substantial showing, “a petitioner must ‘show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.’ ’” ” Id. (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595 (in turn quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983))). The Supreme Court has held that “[wjhere a district court has rejected [a petitioner’s] constitutional claims on the merits, ... [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong” to obtain a COA. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Further, “[w]hen the district court denies a habeas petition on procedural" }, { "docid": "22880481", "title": "", "text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In that petition, Houser alleged due process violations in connection with prison disciplinary proceeding # 20020003898. Houser has demonstrated that reasonable jurists could debate whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000). However, he fails to establish that reasonable jurists could debate whether he has claimed a valid deprivation of his constitutional rights. See id. COA IS DENIED. The district court found that Houser failed to exhaust his state remedies because he had not filed his Step 1 grievance in a timely manner and, further, that he had failed to file a Step 2 grievance. Both of these findings are rendered questionable by the record, which indicates that Houser’s Step 1 grievance was received on the first working day beyond the fifteen-day period allotted for filing grievances and, per the Offender Grievance Operations Manual, was therefore timely. Also, contrary to the district court’s finding, the record contains a copy of Houser’s Step 2 grievance and the response issued by prison authorities. The district court’s determination of failure to exhaust is at best suspect. However, for a COA to issue, Houser must prove not only that reasonable jurists could debate whether the district court was correct in its procedural ruling, but also that reasonable jurists could find it debatable that the petition states a valid claim of the denial of a constitutional right. 28 U.S.C. § 2253(c); Slack, 529 at 484, 120 S.Ct. at 1603-04. This coequal portion of the appealability test “gives meaning to Congress’ requirement that a prisoner demonstrate substantial underlying claims.” Slack, id. Accordingly, we must consider whether “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003). Performing the" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "1287410", "title": "", "text": "ORDER DENYING CERTIFICATE OF APPEALABILITY TIMOTHY M. TYMKOVICH, Circuit Judge. Jonathan Lee Roderick, a state prisoner appearing pro se, seeks a certificate of appealability (COA), see 28 U.S.C. § 2253(c), allowing him to appeal the order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Because we determine Roderick has not established that “jurists of reason could conclude that the District Court’s dismissal on procedural grounds was debatable or incorrect,” Slack v. McDaniel, 529 U.S. 473, 485, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we DENY a COA and DISMISS the appeal. I. Background Roderick was convicted in Wyoming state court of felony murder, aggravated burglary, and unauthorized use of a vehicle. The Wyoming Supreme Court affirmed Roderick’s conviction in 1993, except as to the judgment and sentence, which it modified by vacating a fifteen to twenty-five year term for aggravated burglary. See Roderick v. State, 858 P.2d 538, 541 (Wyo.1993). Roderick then filed a state court petition for post-conviction relief in 2007. That petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed" }, { "docid": "15137365", "title": "", "text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appealability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983); Lyons v. Ohio Adult Parole Authority, et al., 105 F.3d 1063 (6th Cir.1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383. “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483, 120 S.Ct. 1595; see also Porterfield v. Bell, 258 F.3d 484, 486 (6th Cir.2001). When the Court dismisses a claim on procedural grounds, a certificate of appealability is warranted when petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S.Ct. 1595. This issue was central to petitioner’s trial and this Court’s resolution of the issue is central to this habeas proceeding. This claim not only is fact-intensive but also implicates numerous fundamental rights. That being so, the Court is more than satisfied that reasonable jurists could find its" }, { "docid": "23625770", "title": "", "text": "F.Supp.2d 1087 (C.D.Cal.1998). STANDARDS OF REVIEW A. General Standards We review de novo a district court’s denial of a § 2255 motion. United States v. McMullen, 98 F.3d 1155, 1156 (9th Cir.1996). We review for clear error a district court’s factual findings that underlie the disposition of a § 2255 motion. Sanchez v. United States, 50 F.3d 1448, 1452 (9th Cir.1995). B. Standard for Issuing a COA A COA may issue only upon the “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.... When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The Supreme Court recently elaborated on what is required to make such a showing: The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039," }, { "docid": "4885575", "title": "", "text": "determine whether to issue a certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While Lassalle-Velázquez has not yet requested a COA, we see no way in which a reasonable jurist could find our assessment of his constitutional claims debatable or wrong. Lassalle-Velázquez may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. In this respect, we state that it has become common practice to collaterally challenge federal convictions in federal court by raising arguments of dubious merit. This practice is overburdening federal district courts to the point of having some of these criminal cases re-litigated on § 2255 grounds. We look at this matter with respect to the rights of litigants, but also must protect the integrity of the system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (in a motion to vacate judgment 25 under § 2255, the claimed error of law must be a fundamental defect which inherently results in a complete miscarriage of justice); see also Dirring v. U.S., 370 F.2d 862 (1st Cir.1967) (§ 2255 is a remedy available when some basic fundamental right is denied — not as vehicle for routine review for defendant who is dissatisfied with his sentence). V. Conclusion For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order because it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. IT IS SO ORDERED." } ]